As overall drug use in the American workforce increases to ten-year highs, employers are looking to drug testing with greater frequency. Opioid use and the opioid epidemic is one of the employer concerns that leads to more employer drug testing. Sometimes, employers conduct post-accident testing in an attempt to deny workers compensation claims.
However, employers must conduct all drug tests in accordance with a wide variety of state and federal laws.
Drug Testing Report
An annual report shows drug use in the U.S. workforce has risen to the highest level in nearly a decade. The Quest Diagnostics Drug Testing Index says the positive test rate for 9.5 million urine drug tests in the U.S. workforce increased to 4.0 percent in 2015 from 3.9 percent in 2014. The rate has risen for three years in a row.
The rate rose both in the general workforce and among employees in safety-sensitive positions that require testing by federal law.
Another trend is the rising positive rate for post-accident urine drug testing both in the general U.S. and federally mandated, safety-sensitive work forces. Post-accident positives reached 6.9 percent in 2015, up from 6.5 percent in 2014. The rate was 5.3 percent in 2011.
The increase in drug use extends to several different classes of drugs, according to the Quest report:
- amphetamine use increased 44 percent
- marijuana use increased 26 percent
- heroin use increased 147 percent
In other areas, drug use has declined. For example, test positives for certain prescription drugs are lower, year-over-year. This may indicate that physicians are reducing prescriptions for opiate painkillers, given the opioid epidemic that occurred over the past decade.
Although Minnesota law allows employers to subject job applicants and employees to drug tests, legal claims may arise if improprieties occur in the following ways:
- Test protocols
- Who performed the test
- How test results were used
Employees who suffer adverse consequences because of false positives or other test irregularities often have legal recourse. Here are potential employer liabilities when improper drug testing occurs:
Wrongful termination after a first-time positive test – Under certain circumstances, an employer may be held liable if an employee is summarily fired without be given an opportunity to receive treatment via rehab or counseling.
Discriminatory drug testing – An employer may not designate drug testing for certain groups classified by gender, age or race. When this occurs, an individual may have a claim under anti-discrimination statutes.
Defamation claims – An employer has responsibilities under the law when it comes to how drug test results are publicized. For example, if an employer knows or should know that a false positive has occurred, but makes it public anyhow, the employee or prospective employee may have a defamation claim.
Medication for a disability – Applicants and employees taking medications that are illegal under other circumstances are legal when they are prescribed for a disability. For example, if a person takes medication her physician prescribes for chronic pain, the employer cannot disqualify the individual due to a positive opioid test. These employees are protected by the Americans with Disabilities Act (ADA).
Privacy concerns – The manner in which a drug test is conducted may be illegal under certain circumstances. For example, a demand that a sample be provided with another person watching may be considered an invasion of privacy.
Employers and Insurers can use intoxication as a defense to a workers’ compensation claim. However, the intoxication has to be the proximate cause of the work injury. Therefore, a positive drug test or positive findings on a blood alcohol test after a work injury may not necessarily preclude your claim for workers’ compensation benefits.
If you believe that you or a family member has been negatively impacted by possibly improper drug testing, we make it possible for you to review the details with an attorney. There is no charge for an initial consultation. To learn more about our legal services, please contact us.