Can I Still File for Workers’ Comp if I Fail a Drug Test?

David Stradley
Sep 6, 2018 · 5 min read

In the state of North Carolina, employers have the right to require employees to complete drug testing as they see fit. There can be any number of reasons an employer may want to have an employee tested, even in jobs that are not high risk. Employees who refuse to be tested may be subject to termination of their employment.

A drug test following on the job injury is typically designed to determine if the accident was related to intoxication. Some employers have drug-policies that require a full screen following injury, but even those who do not may ask employees to comply. However, the Occupational Safety and Health Administration (OSHA) ruled in 2017 that employers without an existing drug test policy can only require testing if there is an “objectively reasonable” basis to suspect an accident was drug or alcohol related.

Alcohol can leave the system in a very short period of time. To determine if alcohol is a factor in an accident, a near immediate test is required. Most illicit drugs, however, can stay in the system for days or even months, prompting OSHA to rule that a positive test does not necessarily imply intoxication at the time of an accident. Marijuana, for example, may stay present in the system for 30 days or more, while benzodiazepines may stay in the system for six weeks or more. Benzodiazepines are legal when prescribed, but may be included in 10 and 12-panel drug screens.

Am I Eligible for Workers’ Compensation if I Fail My Drug Test?

In North Carolina, you can be denied workers’ compensation if your accident was a direct result of intoxication. However, a positive drug test does not automatically disqualify you from receiving workers’ compensation. Unless it can be established that your accident was directly related to intoxication, your employer’s insurance company will still be required to provide you compensation for medical expenses and a portion of your wages. However, if you have violated your company’s zero-tolerance drug policy, you may be terminated from your job regardless.

It is illegal in the state of North Carolina to fire an employee for filing a workers’ compensation claim. It is not illegal to fire an employee who is receiving workers’ compensation if company policy has been violated by, for example, a failed drug test at a drug-free workplace.

If you are fired while receiving workers’ compensation, you are still entitled to medical benefits until your doctor determines you have reached maximum medical improvement. You may even still be entitled to continued benefits or a lump-sum payment in cases of permanent disability, partial (PPD) or total (TPD), following termination.

Can My Employer Require I Take a Drug Test While on Workers’ Comp?

In North Carolina, drug tests for injured workers cannot be retaliatory. This means your employer cannot force you to take a test in hopes of finding some way to fire you. However, if drug testing is a condition of continued employment by your company, you will need to comply, even if you are on workers’ compensation. Failure to comply may violate company policy and result in termination.

Failing a drug test while on workers’ compensation may be a fireable offense, but this is not always the case. This is where an attorney comes in. If you suspect you have been terminated illegally or if you are being compelled to take a drug test by an employer with no existing drug policy, you may have legal protections. The only way to know for sure is through a case evaluation with a workers’ comp lawyer.

It is a good idea to speak with an attorney if you believe your employer may try to deny an initial claim based on drug screening results. Remember, you can only be denied workers’ compensation if it can be established that intoxication contributed directly to your accident. This assessment can be subjective and even misguided, but without the assistance of an attorney, you may not have any recourse if compensation is denied.

Prescription Medication Use After Returning to Work

If you have been prescribed a medication that could result in a positive drug test, it is important that your doctor notify your employer. You cannot be terminated for taking prescription medications, but you may not be able to perform certain job functions. If medication that can alter mental or physical ability is necessary for your recovery, your employer may need to find a different position for you. If no such positions exist, you may be terminated as a result of being incapable of performing duties.

In these cases, it is also a good idea to have a workers’ compensation attorney on your side. Your attorney will be able to determine if your firing was illegal and to take appropriate action based on those findings.

On opioids: A recent study conducted by the state of Massachusetts has found that workers in certain industries, such as construction, are at higher risk for opioid overdose and death. While this study was state-specific, its results are likely similar throughout the country. If you have been prescribed opioids but fear your use is dangerous, please call the Substance Abuse and Mental Health Services Administration at 800–662–4357 to be referred to local support groups, community organizations, and treatment facilities in your area.

Speak With a Lawyer

No matter if your workers’ comp claim will involve drug testing, it is a good idea to talk to a lawyer before you file to make sure you are not setting yourself up for failure. While no-fault and relatively straight-forward, workers’ compensation is not always easy to receive. One of the most effective ways to reduce risks of claim denial is with the help of an experienced workers’ comp lawyer.

Remember, your attorney will not be paid unless your claim is successful and your consultation should always be free of both obligation and cost. You may need to speak to a few lawyers before you find one you feel confident in, but try not to delay action for too long. Employers must be informed of an injury within 30 days and things can move quickly once notice has been made. Having an attorney on your side helps ensure you are prepared to respond appropriately as things progress.

David Stradley

Written by

At White & Stradley, PLLC, David concentrates on representing families and individuals with personal injury claims.

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