If you are injured at work and you have been denied benefits due to illegal substance found in your blood, you may have a chance to rebut their denial. In Florida the Drug Free Workplace Statute lists the rules and regulations. I have put together a list of the rules and have divided them to make clear what is required and what options does a worker have.
1. The general rule is that compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another.
2. If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.
3. If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.
4. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.
5. As a part of rebutting any presumptions under paragraph above, the injured worker must prove the actual quantitative amounts of the drug or its metabolites as measured on the initial and confirmation post-accident drug tests of the injured worker’s urine sample and provide additional evidence regarding the absence of drug influence other than the worker’s denial of being under the influence of a drug.
6. However, if, before the accident, the employer had actual knowledge of and expressly acquiesced in the employee’s presence at the workplace while under the influence of such alcohol or drug, the presumptions specified in this subsection do not apply.
7. 440.102(5)(h) requires that the employer inform the employee in writing of a positive test result within 5 working days after receipt of a positive confirmed test.
8. In order for the employer to be entitled to the presumption under 440.09(7)(b), a positive drug test must strictly comply with the requirements of the Florida Administrative Code 59A-24. One such requirement is compliance with the chain of custody (COC) and collection requirements of 59A-24.005(2). Some of COC requirements are:
a. 59A-005(2)(d)(4)(b) requires the collector to indicate whether a “split sample” was or was not collected.
b. 59A-24.005(8)(a) requires that urine specimens contain at least 30 mL of urine, and that the approximate volume of the specimen be documented by the collector at the time of collection.
c. 59A-24.006(4)(h)(2) provides that the employee is permitted within 180 days after written notification of a positive drug test to have a portion of the sample retested at another lab.
1. IF THE EMPLOYER DID NOT COMPLY WITH EITHER ONE OR ALL OF THE CHAIN OF CUSTODY RULES, THE WORKER MAY USE THE NON COMPLIANCE AS A DEFENSE.
For more information about workers compensation due to illegal substance don’t hesitate to contact Hysenlika Law Firm at anytime at 813-563-4470.