Drug Tests and Impact on Employment and Workers Compensation

The Pennsylvania Manufacturers Association recently released a report that one in three potential employees either refuse to take a drug pre-screen test or fail a pre-screen drug test.

While in many cases the percentages are not high, the fact that 19% refuse to take drug tests as a condition of employment and 16% fail these tests raise a red flag and a real concern about this issue.

These stats are troubling and disheartening for Pennsylvania.   Drug pre-screen testing is becoming more prevalent because of stat reports like this and because of workplace injuries resulting from illegal drug use while on the job.   Many manufacturers and distribution centers now require drug screening after a work injury occurs.

So what exactly are the ramifications of a positive drug test that involves a work place injury in Pennsylvania?

First, a failed drug test will likely trigger a Notice of Compensation Denial be issued by the Employer, denying workers compensation benefits.  That means in order for an injured employee to get wage loss benefits, he/she must litigate a Claim Petition.  During the litigation, the employee is not being paid any income, if the injury is causing him/her to be out of work  That is significant for most families and injured workers.

Second, if the injury was caused by the illegal drug use, then the claim is barred by law.   It is a ‘but for‘ test.  The rule means that if the injury would not have occurred BUT FOR the intoxication or illegal drug use, then the injured employee is not eligible for workers compensation benefits.   If the injury would have occurred regardless of intoxication or illegal drug use, then the injured employee may be eligible for workers compensation benefits.

Other impacts . . .

What if the employee fails a drug test and is fired for that failed drug test?  If the employer has a Zero Tolerance policy and the employee subsequently fails a drug test and is fired, the right to wage loss benefits is affected.   You can actually win a Claim Petition, but receive no wage loss benefits.  Lets look at an example.  An employee is injured on the job and fails a drug test at the hospital.  The employer subsequently terminates the employee, in accordance with company policy, for the failed drug test. During litigation of the Claim Petition for benefits, the insurance carrier’s doctor testifies that despite the work injury, the employee could work light duty, such as, lifting up to ten pounds.  Employer then puts on a fact witness from Human Resources that testifies that light duty would have been available to the employee, BUT FOR the termination of employment for drug use.  If the Workers Compensation Judge finds the insurance carrier’s doctor to be credible, then Claim Petition would be granted, but an immediate Suspension of benefits would occur.  Why?  Because the Judge found that the Employee could perform light duty, that light duty was available, but the employee could not perform light duty because he/she was fired.  Essentially, the disability from work is not related to the injury, but to the termination from employment.

The same goes for receipt of wage loss benefits.  If you are receiving wage loss benefits and your Doctor or the insurance carrier doctor finds you can perform light duty, and the Employer offers you light duty, but you can’t do light duty because your job was terminated, a Judge can suspend benefits immediately because the disability is no longer work related, but related to termination of employment.

Mark Buterbaugh

Attorney representing injured workers and Social Security Disability clients in Pennsylvania and Maryland.