Post-Accident Drug Testing: Part 2 — Missouri

Missouri’s drug penalty is set forth in Section 287.120 of the Missouri Workers’ Compensation Law. That section allows for reduction or forfeiture of benefits as follows:

  1. A 50 percent reduction of benefits if the employee violated the employer’s anti-drug policy, and if the injury was sustained in conjunction with the use of drugs;
  2. Forfeiture of all benefits if the use of drugs in violation of the employer’s policy was the proximate cause of the injury; and
  3. Forfeiture of all benefits if the employee refuses to take a drug test at the request of the employer, provided that the employer had sufficient cause to suspect the employee used drugs or if the employer’s policy clearly authorizes post-injury testing.

So, the question is: How can employers tailor their anti-drug policies to avail themselves of Missouri’s drug penalty while maintaining compliance with the new Occupational Safety and Health Administration (OSHA) rule?

First, employers must adopt a rule or policy prohibiting the use of drugs in the workplace. OSHA has made it clear that they will scrutinize blanket post-injury drug testing policies, so the anti-drug policy should provide for testing only in situations where employee drug use was likely to have contributed to the accident.

Second, employers should require employees to sign the anti-drug policy, as well as consent to be drug tested. That will allow the employer to prove that it had adopted the anti-drug policy, and that the injured employee was aware of the policy. This will also allow the employer to argue for a forfeiture of benefits in the event the injured employee refuses to take a drug test.

Finally, the policy should require drug testing that is sufficient to identify the level of drugs in the employee’s system. For example, a urine screen might show the presence of carboxy-THC, a metabolite for marijuana. The presence of carboxy-THC might be enough to prove the use of marijuana was in conjunction with a work accident, and it might even be enough to prove the use of marijuana was the proximate cause of the accident. However, the mere presence of carboxy-THC does not measure impairment. On the other hand, a blood test that is positive test for delta-9-THC will allow a toxicologist to render a more definite opinion with respect to impairment. This will put employers in a better position to prove a complete forfeiture, and it will satisfy OSHA’s requirement that the testing identify impairment caused by the drug use.

 

 

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