Do You Need to Pass a Workers’ Comp Drug Test?

A reader wrote in with this question: “I fell at work in January and filed for workers’ comp for my injury. Can my employer ask me to take a workers’ comp drug test several months later? They didn’t require one at the time, so how is this relevant to my claim?”

Like so many other legal questions, this one has a simple answer, but with conditions (which makes it anything but simple!). More below.

There is no federal requirement that all private businesses must test their employees for drugs or alcohol. But if your employer randomly tests employees for drugs and alcohol as a general practice, the simple answer to the reader’s question isyes.” In other words, your employer can require a workers’ comp drug test now, even when your fall was months ago.

Random drug tests are legal because there are few laws that protect a worker’s privacy while on the clock. Also, employers have the right to expect workers to avoid impairment by drugs or alcohol while on the job.

If your employer hasn’t previously required random drug testing, then the question becomes a bit more complicated.

Who Regulates Workplace Safety?

The Occupational Safety and Health Administration (OSHA) is a federal agency that ensures safe and healthful working conditions. OSHA also settles and enforces work standards through training, outreach, and assistance programs.

In 2016, OSHA prohibited employers from retaliating against employees for reporting work-related accidents or injuries. You can see further clarification about OSHA’s position in a 2016 memo. It stated: ““The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Simply put, OSHA says it believes employers can require random drug testing because it’s in everyone’s best interest.

How Long After a Fall Can My Employer Make Me Take a Workers Comp Drug Test?

Since random drug tests are legal, employers with that drug-testing policy can test employees at any time. So, the better question to ask might be: How long after a fall or other injury accident can my employer force me to take a workers’ comp drug test?

Let’s be clear: if your employer has a policy and history of random drug testing, you can be subjected to that rule at any time. Whether or not they can use the results of a drug test to challenge your workers’ comp claim, however, is a different question.

Like so many other legal questions, there is no one right answer. The type of employer you have can make a difference, for example. Private companies aren’t subject to the same regulations as government entities, for instance. The answer also depends on the state where your accident happened and/or you work. State laws may also play a role in determining if your right to privacy limits your employer’s right to require random drug tests.

The state of Kentucky seems to have no problem with drug testing months after an accident. Every state is different: Delaware imposes no restrictions on employers, for example. However, Hawaii requires advance written notice disclosing which substances employers will test for.

A reasonable person might assume that testing two months after an accident is a violation of privacy or an attempt to deny workers’ comp benefits. But because each state’s laws vary and the circumstances of each case are unique, there is no one-size-fits-all answer to our reader’s original question.

Should I Hire An Attorney For My Workers’ Comp Drug Test Case?

Every workers’ compensation case is different, and it can be confusing to navigate on your own. Not every case is worth filing, but a qualified attorney can help you determine if yours has merit. If finances are holding you back from consulting with an attorney, remember that our workers’ comp attorneys work on contingency. This means you only pay legal fees if they help you win compensation from your former employer.

Ready to find out if you might qualify? Complete your free online workers’ compensation case evaluation now!

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Lisa Allen is a writer and editor who lives in suburban Kansas City. She holds MFAs in Creative Nonfiction and Poetry, both from the Solstice Low-Residency Program in Creative Writing at Pine Manor College. Prior to becoming a writer, Lisa worked as a paralegal, where she specialized in real estate in and around Chicago.