After every accident involving potential human error, North Carolina employers should perform a drug test. The test must enable the defense attorney to prove not only the presence of an intoxicating substance, but the concentration. Most simple urine drug screens do not provide that information.
The North Carolina Workers’ Compensation Act makes “intoxication” by illegal drugs, or legal drugs not taken as prescribed, a defense to a claim for an injury by accident. But “intoxication” is harder to prove than many realize. The defense attorney must prove that the claimant was intoxicated, not just that they had a drug “in their system.” As a practical matter, this means the attorney must prove the concentration of the drug in the system and that the intoxication contributed to causing the accident. Without a quantitative urine or blood analysis, both elements are usually impossible to prove. Unless the attorney knows the concentration of drug was in the claimant’s system, the defense toxicologist usually cannot opine that the claimant was intoxicated. Consider the case of marijuana, which can stay in a person’s urine for weeks, long after intoxication ends. Most positive tests showing the presence of marijuana are useless.
To use this potential defense to maximum effect, employers should test the claimant in every case where it appears that person’s human error might have been a factor in the accident. This test should be quantitative, meaning it measures and records the concentration of the drug in the claimant’s system. Preferably, a clean sample should be retained for later use, with the “chain of custody” protected. To implement such a system will require coordination between the employer and the initial treatment facility.