Can My Employer Drug Test Me after a Work Accident? 

August 29, 2022

For many years, employers required mandatory drug testing following any accident that resulted in a worker becoming injured, typically because an injury took place, not for the circumstances leading to the accident. In many instances, employees who refused to submit to a drug screening were terminated for doing so.

Employers reasoned that testing was required to determine whether substances the employee may have ingested, both alcohol and drugs, were partially or completely at fault for the worker’s injuries. Impairment in many states does have some bearing on Workers’ Compensation claims and distribution of benefits; however, drug testing for these purposes is no longer permitted.

In 2016, the Occupational Safety and Health Administration (OSHA) determined that automatic drug testing following a work injury could be considered a disciplinary or retaliatory act by employers to deter their employees from reporting workplace injuries for Workers’ Compensation benefits. Drug testing cannot be required for workplace accidents unless there is a reasonable basis for requiring one.

Under the new OSHA rule, employers are obliged to inform employees of their right to report accidents and work-related injuries to their state Workers’ Compensation without fear of retaliation. Additionally, employers must have reasonable procedures in place for workers to report injuries and not deter them from doing so.

To clarify employer confusion over how to balance providing a safe workplace environment with the new drug testing limitations, OSHA reported that the majority of drug testing reasons are allowed, such as:

• Unannounced random drug testing
• Drug testing not related to accident or injury reporting
• Drug testing required by each state’s Workers’ Compensation laws
• Drug testing mandated by federal laws

Further, employers can perform drug testing to determine the basis of a workplace accident that did harm, or would harm, employees, as long as all employees involved in the accident are tested, not just the worker reporting injuries. Testing multiple employees is not considered out of retaliation, OSHA said.

Can I Be Fired if I Fail the Drug Test?

Per OSHA regulations, you cannot be fired specifically for failing a drug test. The Occupational Safety and Health Act forbids employers from making post-accident drug testing mandatory as a means of preventing employees from reporting work-related accidents to Workers’ Compensation, nor firing employees in retaliation for reporting the accident.

This does not mean, however, that you cannot be fired for failing a drug test based on other laws, regulations, or employer policies. Employers do have the right to insist on a drug-free workplace and terminating employees who violate their policies.

Failing a drug test does not affect your ability, and your right, to receive Workers’ Compensation benefits either. Workers’ Compensation does not require post-accident drug testing in any state. Under the no-fault system, if you are injured at work, you do not need to provide proof, including drug related. Even if the employer fires you for failing a post-accident drug test per their policies or law, they cannot deny your access to Workers’ Compensation benefits and are still required to pay you those benefits, regardless of the drug screening results.

Despite these regulations, however, you may not be completely protected from being fired for failing a post-accident drug test. For example, assume the drug screening results in traces of marijuana found in your system. Although legalization of recreational marijuana in Maryland is on the November 2022 ballot, it is not currently legal in the state, nor at the federal level. In this instance, your Workers’ Compensation benefits may be jeopardized, although your claim remains valid. In a related note, laws and regulations pertaining to employees with valid, state-issued prescriptions for medical marijuana vary per state, as do employer policies regarding use of medical marijuana during employment.

Having a positive marijuana test opens the door for scrutiny from your employer and the business’s insurance company, who could claim the accident directly resulted from your drug-impaired state. Your benefits could be denied if your employer can prove:

• The drug test positively proves the drug caused impairment.
• The drugs found in your system are directly responsible for causing the accident in which you were injured.

Do not be discouraged by these requirements. It is quite difficult to prove any substances directly caused an accident without some other definitive proof; therefore, your benefits will likely not be affected for failing a drug test.

What Should I Do if I Am Injured at Work?

If you suffer an injury at work, you are entitled to Workers’ Compensation benefits for lost wages, current and past medical bills, disability, and other compensation through your employer’s insurance. To ensure a valid claim, it is essential that you take the following steps:

• Report your injury: Notify your supervisor, manager, or employer of your injury at the time of the accident. Workers’ Compensation requires employers file an official record of the incident within a short time of the accident occurring, which will be referenced to evaluate the validity of your claim. If no report is taken, you will not be able to file a claim for benefits. You are also entitled to a copy of the report your employer submits, and you should request a copy at the time of the accident or shortly thereafter.
• Seek medical treatment: Being evaluated by a medical professional is the most critical step when filing a claim for work-related injuries. Without a medical report, it is extremely difficult to prove your injuries are related to the accident, and Workers’ Compensation will deny your claim. See a doctor within 24 hours of the accident, although it is highly recommended you do so immediately following the accident, even if you think your injuries are minor. Many serious medical conditions do not present symptoms for hours or days and can be life-threatening if left untreated.
• Document everything: If you are able immediately following the accident, begin making a record of the scene and the injuries you incurred. Photograph the scene, your injuries, what caused the injuries, when and where it took place, warning signs or lack thereof, and anything else relevant to the accident or your compensation claim. If your employer has security cameras, request footage of the accident if it took place where a camera would have captured it.
• Obtain witness statements: Take notes or record witness statements on your phone and ask for their contact information should your lawyer need to speak to them later. Also ask that they share any photos or video they may have taken of the accident.
• Maintain records: Over the next days and weeks, you will receive many reports and communications related to your accident and injuries, such as medical reports, your employer’s incident report, medical bills, and other information. Keep everything to maintain a complete record for yourself and your lawyer. These items play a crucial role in documenting and validation your claim for benefits.
• Hire an attorney: Workers’ Compensation cases can be complex and may involve multiple responsible parties, depending on your employer’s type of business and whether negligence on any of their parts contributed to the accident and subsequent injuries. You are entitled to handle your own claim, but keep in mind that without knowledge and understanding of the specifics of Workers’ Compensation laws, anything you do or say could be used against you and jeopardize any chances for compensation. Additionally, insurance companies routinely offer minimal settlements or deny claims outright for claimants without legal representation. They do so in hope that the claimant will just assume they cannot do better and either accept the low settlement, or just accept their claim was denied and do not pursue it further. Unfortunately, insurance companies are successful more times than they should be in these situations, and they avoid having to pay compensation the injured workers rightfully deserve.

Baltimore Workers’ Compensation Lawyers at LeViness, Tolzman & Hamilton Help Clients Defend Their Rights following a Workplace Accident

If your employer is demanding a drug test in retaliation for reporting a workplace injury, the knowledgeable Baltimore Workers’ Compensation lawyers at LeViness, Tolzman & Hamilton will be your advocate and defend your rights. Our experienced legal team can help you recover compensation for your injuries and loss of income. Call us today at 800-547-4LAW (4529) or contact us online to schedule a free consultation.

We have offices in Baltimore, Glen Burnie, and Prince George’s County, allowing us to represent clients in Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.