Workers' Compensation Discussion Forums

I am currently taking an insurance class and discussing work's comp.
Last week I brought up the issue of being hurt and the job while under the influence of alcohol or drugs. We as a class was told the Michigan is a no-fault state and you would receive worker's comp if hurt on the job with influenced. I do not believe that this is true. Just trying to get some answers!
Thanks

I think in some states it depends on if the injury would have happened even if not under the influence. If something falls from above and hits someone, not being under the influence would not change the outcome. If you stick your hand through a rip-saw because you stumbled, may be a different story.

good answer fencer.--there has to be a causal relationship.

Great answer Fencer. And so true. Must show and prove a casual relationship to the injury.

Plus, the real only way to tell if under the influence, and meaning, were they drinking, or doing drugs while at work at time of injury is a Blood Test. A urine test the simple types, will show only the person used at some point and time, doesn't always mean they were using at the time at work, but, could have been the night before.

Blood tests do not determine impairment from drugs, only alcohol, for a number of reasons not the least of which is impairment has been legislated at a particular blood level while no such figure exists for drugs.
I don't know about Michigan but assumption of impairment is best determined by behaviors and can be made by observation. Some states use a rebuttable presumption to deny a comp claim when a urine drug test is positive. The employee then must prove he was not impaired.

Cycler, I think we been down this path before. As there are pro's and con's to Urnie testing that I have pointed out before.

As in the State Law and Rules, the burden of proof needs to be meet for a Denial.

From the Labs;

Studies indicate that marijuana and alcohol potentate one another more than either drug alone. Thus, smaller amounts of ethanol and marijuana may increase toxic effects. Peak levels of marijuana metabolites in the urine occur about five hours post dose and thus are not useful in predicting the degree of intoxication. Urinary presence only indicates recent exposure. Note marijuana metabolite testing is available only in urine, not hair.

The initial screening cutoff level is 50 ng/ml. The GC/MS cutoff level is 15 ng/ml. The elimination half-life of marijuana ranges from 14-38 hours. At the initial cutoff of 50 ng/ml, the daily user will remain positive for perhaps 7 to 30 days after cessation. At the confirmation level of 15 ng/ml, the frequent user will be positive for perhaps as long as 15 weeks. Marijuana metabolites' storage and slow release from lipid tissues is the reason for this long detection period.

http://healthy.net/scr/article.asp?Id=8085

But, lets not forget, a smart employee, if he/she knew their Rights pertaining to any Drug Test, can legally dispute such test, and win with ease, if they knew their rights under the given Law. Hence, the fact, the work comp claim could simply come back to life.

Please remember, no employer wishes an employee to be too smart about legal employee rights...

Any employee can first request the following information before taking a Drug test;

What is the name and address of the lab that will perform the test ?

EXACTY what test or tests are to be used ?

For each test performed, list the type and quantity of specimens required ?

For each test performed, list the percentages for false positive and false negative results.

Provide statistical justification for these percentages.

In the case of a false positive, what are the established procedures for retesting ?

How many times will retesting be permitted ?

What is the established procedures for resolving consistant false positive results ?

What facility is going to extract the specimen(s) ?

How much of each type of specimen is going to be extracted ?

Are the lab and the blood extraction facility bonded ?

What company carries their malpractice insurance and what are their policy numbers ?

EXACTLY what information will be release from the lab to the employer ?

It is required that all results be forwarded to me.

Unfortunately, this may be difficult since urine tests may detect marijuana 1-5 days after an occasional use, 1-3 weeks in regular users, and 4-6 weeks in multiple daily users. Since urine tests do not detect the psychoactive ingredient of marijuana, THC, but rather other, nonactive metabolites, they in no way measure impairment;

Although urine tests are far from infallible, it is difficult to challenge positive test results. "False positives," in which workers are wrongfully accused of marijuana use, are highly unlikely so long as labs exercise proper care (however, not all labs do this). The standard procedure is to first screen the samples with an immunoassay test (e.g., EMIT® or RIA®), then confirm positive results with the more accurate gas chromatograph mass spectrometer (GCMS). This virtually eliminates the chance of false positives in exchange for a relatively high rate of "false negatives," where drug use is not detected. The sensitivity of the test is determined by the concentration of metabolites it is set to detect: for the Dept. of Transportation, the standard cutoff is 50 nanograms/milliliter (ng/ml).

LEGAL CHALLENGES: Prospective employees have no legal right to challenge pre-employment drug screens. However, workers who are already employed may be able to challenge their employers' drug testing plans in certain situations depending on labor law and local regulations. Avoid signing anything that gives your boss the right to arbitrarily test you; by stating your objections, you will strengthen your right to refuse a test. If you think you are being unjustly tested, you may have cause for legal action. San Francisco, Berkeley and some other jurisdictions forbid on-the-job drug testing except in safety-sensitive positions.

The employer to pay worker's compensation unless the employee's accident was caused by intoxication. A positive drug screening may show the presence of an intoxicant, but does not necessarily demonstrate that an employee was 1) intoxicated at the time of the accident or 2) that the intoxication caused the injury. Therefore, a positive drug test alone might not provide a defense to a worker's compensation claim.

That's certainly a lot of information. How it applies here I don't know but again, your statement concerning blood tests applies ONLY to alcohol.

What exactly are your concerns re the CONS for Urine testing ? It is a deterrence system, not an ID system. To Identify drug users in the workplace more sophisticated HR performance tools are used and managers are trained in their recognition. These behavioral clues will then may lead to a for cause or UDS while other options remain available to the employer. Also be aware that outside of federally regulated testing programs such as DOT state specific rules apply to drug testing and they can be pretty ill-informed. So, to the OP, it depends on the specific rules of Michigan, in my state it would not be considered a work injury but grounds for immediate dismissal if clearly under the influence.

A UDS is for all purposes infallible when performed by a DHHS certified lab as the combination of high sensitivity on the EMIT coupled with the high specificity of the GC/MS confirmation gets you beyond 98% accuracy. In other words there are no false positives or false negative lab results. I think thats what you were getting at. A lab positive does not equal a report of a positive drug test however - another topic.

Some states use rebuttable presumption laws which do provide an opportunity for the employee to demonstrate that the presence of drugs in his system was not the proximate cause of his work injury and with marijuana this is not hard to do.

Every atty. is aware of the detection window of a UDS Monday morning random testing is always problematic so employers have been counseled to avoid that day or deal with weekend party issues.

I am also aware of company drug testing policies that construe any drug presence at any time in a UDS as cause for dismissal and if the employee sighs the employment contract it is then binding. So, most of the problems associated with drugs testing and workplace injuries stem from a poorly written and implemented company drug testing policy. You don't have to take the job.

Cycler, I understand your side of this testing. And I am fine with it. But, also it is just from a one side of the picture statement. Myself, I want to view all sides of the picture.

Like does the person having been tested, have any rights or options.

Yes, they do. But, no employer would wish them to know these Rights or Options.

Then a Blood test and even a hair sample test can be performed. But, once again, it takes an employee that knows his/her Rights, and options. Blood test do work, just they are costly and take anywhere from 3 days to 3 or 4 weeks for the results. It's my opinion, if as an employer, if one test positive, cover your bases and offer the employee the added options of testing. By doing so, if the employee elects to refuse the added testing options, the employer has made a Great stand, and employee shall then be released.

I have seen many places on how they do, and still do Drug Urine testing. The sample is first tested for tempature, and then a test strip is used. If the test strip indicates drug use, it's reported back to the employer. The test strip method is not soild proof though. But, then the options, lay either in the employer hands, of the employee's hands. If employer doesn't request the more costly proving test, it then leaves the door wide open for the Employee then.

Most of these test are done on site or at a clinic. Leaving way to much room for error to take place.

Where were the test strips expoused? Good question.

How do I truely know it was my sample tested? Good question.

Did the person drop the test strip and still use it? Good question.

Could another sample been splashed on the test strip before use? Good question.

Why was I not allowed to watch the full course of my sample that I handed over be tested to know it was really mine? Good question.

As you can see, a smart employee can simply dispute.

Plus, I am aware of the behavioral clues. In fact my last Boss was one that trained it that. But, if you asked me, there was something wrong with him, for his behavior and clues to it, would of made myself think he needed some kind of help, and a drug screening performed. Behavior in employees change throughout the work day, may be different from a Friday to a Monday. They could be in a Divorce and not wish to share that information. So, behavioral clues don't always work. For it is a fact, a manager may not be the best person to try and tackle that. I have seen it in my time to say that is true. Nothing is fool proof.

MICHIGAN EMPLOYMENT SECURITY ACT

Section 421.29

(m) Was discharged for illegally ingesting, injecting, inhaling, or possessing a controlled substance on the premises of the employer; refusing to submit to a drug test that was required to be administered in a nondiscriminatory manner; or testing positive on a drug test, if the test was administered in a nondiscriminatory manner. If the worker disputes the result of the testing, a generally accepted confirmatory test shall be administered and shall also indicate a positive result for the presence of a controlled substance before a disqualification of the worker under this subdivision. As used in this subdivision:

(i) "Controlled substance" means that term as defined in section 7104 of the public health code, 1978 PA 368, MCL 333.7104.

(ii) "Drug test" means a test designed to detect the illegal use of a controlled substance.

(iii) "Nondiscriminatory manner" means administered impartially and objectively in accordance with a collective bargaining agreement, rule, policy, a verbal or written notice, or a labor-management contract.

(As you can see, MICHIGAN allows the dispute, and further testing to take place. It's their Law)

http://www.legislature.mi.gov/(S(n5m5jo45x5fvhjifyrguhdbz))/mileg.aspx?page=getObject&objectName=mcl-421-29

I didn't know we had sides. No state has ever taken away an employees right to due process although some are easier than others.

I believe you are mistaken on the admission of blood tests for proof of impairment. SInce no specific blood level of any drug has been legislated as proof of impairment, as opposed to alcohol, it cannot be used for that purpose other than as evidence that the substance is in the persons body, another matter entirely.

The on site clinic testing is very well regulated as any clinic will follow federal guidelines and chain of custody procedures if they do any DOT collections at all. The testee must sign the seal and eyes on observe the sealing of his own urine. The lab will not test a broken sealed container. When there are collctor lapses or errors a number of things will then take place to rectify, In addition certain types of collection errors are termed fatal and the test is cancelled, others can be fixed via affidavit, such as missing info. THis is, however, where most errors do occur, not in the lab.

The test strip method if UDS is a screen only and is not conclusive. Employers will generally send out for confirmation but are not required to do so in most states. That employers may act on strip result alone is unfortunate but easily challenged and reversed.