Drug Testing is a common issue in the workplace. Drug Testing, in the field of employment, is done for a variety of reasons. There are Pre-Employment Drug Tests, there are Random or Periodic Drug Tests, and there are Drug Tests after industrial accidents.
When there is an industrial accident, there are two types of Drug Tests that can occur. There can be a Drug Test taken immediately after the work injury. There can be drug testing done as part of the industrial treatment for the injury.
Is there any advice for Employees?
Yes. If you are seeking a job or working at an employer that does drug testing, it is advised that if you take any drugs, that you make sure that you have a prescription for them. While marijuana in California may be legal as a recreational drug, a medical prescription for it is helpful. I have encountered many people who did not have a prescription for marijuana and took it under the premise that it was taken to “self-medicate” themselves. They were tested after the industrial accident and were found positive for marijuana. Without a prescription, their employment status was severely jeopardized. In sum, “self-medicating” without a prescription could lead to job suspension or termination.
Drug Testing after a Work Accident, Why is it Important?
Drug Testing, after a work accident, has ramifications with respect to workers’ compensation law. In California, there is an Intoxication Defense. The Intoxication Defense is within Labor Code Section 5705, and provides an affirmative defense of the employer can show that the employee’s intoxication was the cause of their injury.
The affirmative defense, however, is difficult to prove. While a Drug Test may be positive with respect to particular drugs, the Employer must prove that the intoxication was the cause of the injury. The fact that a drug test is positive does not necessarily mean that the employee was intoxicated and that such intoxication caused the injury.
Why is Drug Testing done during the course of Industrial Medical Treatment?
California Workers’ Compensation Law allows for physicians to employ drug testing as part of the treatment protocol. In California, there is the Medical Treatment Utilization Schedule provides the rationale for drug testing.
An Injured Worker’s conduct or past can trigger a doctor requesting drug testing. Drug testing may be ordered when the physician sees a number of thing occurring: multiple unsanctioned escalation in dose, lost or stolen medications, frequent visits to the pain center or emergency room, family members expressing concern about the patient’s use of opioids, excessive number of calls to the clinic, family history of substance abuse, past problems with drug and alcohol, history of legal problems, higher required dose of opioids for pain, dependence on cigarettes, psychiatric treatment history, or reporting fewer adverse symptoms from opioids.
How Can Drug Tests Differ?
Drug tests can be in a variety of forms. Some Drug Tests can look for certain medications being present. Here is an actual Drug Test which was looking for result concerning two specific medications.
Some drug testing is more comprehensive. The drug test pictures below is an example of a comprehensive drug test. These pictures demonstrate how extensive it can be.
Does the fact that a Physician ordered Drug Testing mean that it will occur?
No. Drug testing is considered part of medical treatment which is subject to Utilization Review. This means that the request for drug testing is subject review by the insurance company and its approval before it is done.
Why is Drug Testing a concern for Injured Workers?
Drug Testing provides results concerning a variety of drugs. This testing may give rise to information that the Insurance carrier can use in the defense against Injured Worker’s claim. The drugs on the test may impact the case concerning credibility, i.e. the worker denied taking the drugs that they tested positive for, causation, i.e. the worker may be taking street drugs such as meth which impacts their emotional state, or non-industrial drugs taken may have a causative effect on industrially claimed illness or disease.
Is there any advice for Injured Workers concerning Drug Tests with respect to Workers’ Compensation cases?
When an Employee has a workers’ compensation case, they are frequently asked what medications they use. It is important to tell the doctors about all of the medications, prescription and non-prescription, that they are using. It is important to be accurate and truthful with the doctors. Also, the Injured Worker should understand that if certain conduct is present, it could trigger the physician to order drug testing. Prescription Drugs can have serious side effects. It is important that the Injured Worker cooperate with their doctor to make sure that they get the proper medication.
If you would like a free consultation with a workers comp attorney, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 25 years. Contact us today for more information.
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