Firm-Wide blog

Can Drugs and Alcohol Hurt Your Workers’ Comp Case?

By Burg Simpson
September 20, 2017
4 min read

It has been five years since voters legalized recreational pot consumption in Colorado. As a result, many employers have backed off from testing candidates and employees for drug use at a record pace.

In 2014, for example, roughly 77 percent of Colorado companies featured drug-testing policies. Today, only 62 percent of businesses test for drug use, still significantly higher than the national average of 52 percent for pre-employment screenings. Experts explain that the state’s unemployment rate is just so low that employers can’t afford to be as stringent as they would like to be when testing job candidates for drug use.

If you have been hurt on the job – regardless of whether drugs or alcohol were involved – do not hesitate to call a Colorado workers’ comp attorney for help as soon as possible.

Colorado Undecided About Drug Testing

Colorado is a state that does not impose any rules or restrictions when it comes to workplace drug testing. In fact, employers are not even asked to implement any written drug policies aside from what is required by the state’s unemployment and workers’ compensation laws.

However, the Colorado Supreme Court has supported the testing of employees based on a supervisor’s “reasonable suspicion” that an employee is under the influence of drugs or alcohol.

Most Colorado employers follow federal procedures and test for what’s known as the HHS-5:

It is worth noting that Colorado employers are not required to accommodate an employee’s medical marijuana use at work and the Colorado Court of Appeals has ruled that an employee’s off-duty use of medical marijuana is not considered a “lawful activity” under Colorado’s Lawful Activities Statute. This is an important distinction because it means that you can be terminated if the employer has a strict “no drug” policy even though the use took place away from work, on your own time, and was not a factor in the workplace accident. Additionally, employers are not compelled to accommodate the “use, possession, transfer, display, transportation, sale or growing of marijuana in the workplace”.

Boulder is the glaring exception in Colorado. The state’s 11th largest city has one of the strictest drug testing laws in the country. Boulder prohibits random drug testing and allows employees to be tested only with advance notice and even then only if the employer has “reasonable suspicion”. Tests must be conducted in a National Institute on Drug Abuse-certified testing facility. Boulder also allows for drug testing if an employee has just finished a drug treatment program.

Workplace Accidents Can Trigger Drug Tests

Colorado employers can, however, force an employee to take a drug test after a workplace accident, as long as a written drug policy has been in place and published. Employers are required to foot the bill for any tests they order. Testing typically only includes urine sample collection. Since marijuana, or THC, stays in the system for up to a month this type of test can show a positive result even if the THC was consumed away from work well over a week prior to the accident. This may result in a termination for cause by the employer because the insurance carrier will indicate to them that if they terminate for a reason” not related to the accident” temporary total benefits may not be owed. This puts the injured worker in a very difficult spot because they may not be able to go out a get a new job as a result of the injury and may face months or rehabilitation without income from the workers’ compensation insurance carrier. This is frequently when they decide that they need legal help.

If a workplace accident injured an employee who later tested positive for drugs or alcohol, the law presumes the employee to have been intoxicated at the time of the incident. But that does not preclude the employee from collecting workers’ compensation benefits. It does, however, result in a 50 percent non-medical benefit reduction. Positive test results can be challenged with a second test, but any such retest must be paid for by the employee. Medical benefits remain the same, regardless of any drug tests. Do not assume that a positive test means that you should give up the right to full benefits because there are challenges to this and frequently they do not hold up at a hearing. See an attorney that is very knowledgeable and experienced in workers compensation to fight this.

Incidentally, a positive test result for on-the-job drug or alcohol use can threaten an employee’s unemployment benefits – unless the employee can provide evidence of participation in a rehabilitation program.

Get medical attention first, but then call a Colorado workers’ compensation attorney as soon as you can. Call 303-792-5595 before it is too late or fill out a FREE case evaluation form here.

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