Employers are entitled to establish a zero tolerance drug policy for their workforce. An enforceable zero tolerance drug policy is established by a clear employee handbook that each employee is required to sign at the outset of employment. Another common component of a zero tolerance policy is regular Workplace drug testing and immediate discharge for positive testing.
A packaging factory worker injured at work recently lost all workers’ compensation benefits because drug testing immediately following his workplace accident showed he had marijuana and cocaine in his body. The worker had been loading and unloading skids from a conveyor belt when he was pushed against the belt by a forklift
operated by another employee. Briefly pinned, he suffered lower back disc herniations.
The employer’s zero tolerance drug policy specifically provided that all employees were required promptly to submit to drug testing when injured in the workplace. On the way to emergency medical treatment, riding with a supervisor, the injured employee confided that he would probably fail the drug test because he had used marijuana and cocaine within the past several days. He did test positive.
The employer immediately discharged the employee and denied him any workers’ compensation benefits. The employee’s treating physicians reported that he was no longer fit to lift any significant weight while working and was limited to light duty, or sedentary work, only.
Workers’ compensation benefits are paid to employees disabled by work-related injuries. But “disability” in workers’ compensation cases is not physical disability; instead, it is the loss of the ability to earn wages. This distinction was of immense importance in the employee’s case because the workers’ compensation judge found that the employee had lost his wages not because he had been injured but because he had been fired for violation of the workplace drug policy. The judge never had to reach the issue of whether the employee could work in the future or if the workplace injury had caused a life time disability. Instead, pursuant to workers’ compensation principles, the judge had to find that the triggering event for the employee’s loss of wages was not his injury but his admitted violation of the workplace drug policy and the consequent loss of his job.
Zero tolerance for the use of drugs in the workplace can have lifelong effects on injured workers. Had the packaging worker lost a hand or suffered an even more serious injury, the result in the case would not have been any different. Violation of drug policies can eliminate all workers’ compensation benefits for injured employees, in addition to advising Workers of the terms of their zero tolerance policies, employers should consider educating their workers about the potential for loss of their valuable workers’ compensation benefits.
Resolution of legal issues depends upon many factors, including variations of facts and interpretations of Pennsylvania law. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The readers hould always consult with legal counsel before taking action on matters covered by this newsletter.