A recent insurance journal headline reads, Positive Drug Tests In US Workforce Highest In Two Decades. According to the article, positive drug test rates increased another 4.6% in 2021. The rate shows a 31.4% increase from its all-time low just 10 years ago. In isolation, those statistics are troubling. Let’s talk a little more about the potential impact of increasing employee drug use on accidents and injuries. An increase in drug impairment means an increase in dangers among employees on worksites. It also means an increase in dangers to the public, especially on our roads and highways. Today, I’ll address a couple areas of concern as well as one area of potential long-term good news.
Do Changing Marijuana Laws Impact Workers Compensation Claims? And Other Personal Injury Claims?
I’ve written several times about the potential impact of changing marijuana beliefs and laws on work-related accidents. In Alabama, our work comp law bars claims where (1) the worker was impaired; and, (2) that impairment proximately caused the accident. That second requirement – the impairment proximately caused the accident – is likely to be a key issue in more future cases.
In the 25+ years I’ve handled Alabama workers compensation claims, attitudes about marijuana use have changed tremendously. When I started practicing law, a positive drug test by itself was probably sufficient for most judges simply to deny a work comp claim. But, the law actually requires more than a positive test. The impairment must also proximately cause the accident. What does that mean? I’ll answer the question by discussing a case I handled early in my career. I represented a roofer hurt on a large industrial job near Scottsboro. My client (and the entire roofing crew) had been drinking alcohol as they worked that day. But, the key question was — Did the worker’s intoxication cause his accident and injury? Not in his case. In my client’s case, the roof collapsed underneath him without any warning or observable problems. Any roofer, impaired or not, would have been injured. My client survived the fall but was left permanently disabled. We were able to secure available medical treatment and compensation benefits for him.
Several years later, I fought this issue again in a Huntsville case. This case was a closer call. My client hurt his back lifting a heavy industrial product. Two days after the accident, his employer drug tested him. The test was positive for marijuana. The employer then denied his work comp claim. At trial, we had several witnesses who testified concerning the accident. All of them testified my client did NOT appear impaired. We had an additional witness who testified the drug use occurred after the accident. Who would the judge believe? It was a tough case. After hearing those witnesses, the court concluded his impairment had nothing to do with the accident. In the end, my client won his benefits but he had to fight through trial for them.
In recent years, marijuana laws have liberalized in many states. Will changing marijuana laws mean we see many more courtroom fights over whether or not an impairment actually caused a work-related accident? I think that’s a huge issue for the future.
I’ll add another wrinkle to the potential for more future litigation over whether or not an impairment proximately caused a work-related accident. That wrinkle involves testing. While testing provides an answer as to whether or not a person consumed marijuana, it’s not great at pinpointing a timeframe for the consumption. Of course, that adds to the disputes about whether any impairment contributed to causing a specific injury.
Companies must also expect additional issues with changing laws on marijuana use. Companies must enforce workplace rules that protect employees and the public at large from being hurt. An impaired worker is a danger to himself, his co-workers and members of the public with whom he interacts. From the company-side, managers must consider how to prevent serious accidents, injuries and costly litigation. Changes in marijuana laws and attitudes will make it more difficult for companies to create and monitor workplace safety rules that prevent personal injury.
Did The Pandemic Impact Drug Use Among Workers?
During the pandemic, I wrote about the increased rate of DUI arrests in communities across northern Alabama. Several of our local law enforcement agencies reported increased problems with impaired driving.
While fewer cars were on the road during the pandemic, the rate of really serious and fatal accidents remained high. This rate even increased in some places. Fewer cars but more serious injuries. Fewer minor fender benders but more behavior considered truly reckless. Many of these really serious injuries were caused by dangerous distracted driving or impaired driving.
According to the National Institute of Health, researchers observed increases in substance abuse during the COVID-19 pandemic. Researchers have speculated about the causes of this increased drug use — from challenges due to closures, isolation from being at home, a lack of community, to stress over finances and work. I mention the pandemic because the insurance journal article really highlights drug use increases over that specific timeframe. Will numbers continue to rise now that many activities have re-opened? We should learn a lot about the trend in drug use and impairment now that many normal work and social activities have resumed.
Does A Rising Rate Of Positive Drug Tests Mean More Impaired Drivers Are On Our Roads And Highways?
In February I wrote about US Department of Transportation data showing increasing rates of positive drug tests among commercial truck drivers. While I worry the data is trending upward when it comes to impairment from drug use among drivers, the news is not all bad.
In the area of commercial drivers, much of the rise in rates is occurring from pre-employment testing that is now reported to the Federal Clearinghouse database. In the past, dangerous truckers could simply lie about drug impairment to a new employer. Maybe the few dangerous commercial drivers who are addicted to drugs will now be detected and stopped before they put others in danger on our highways! You can read my article on that issue at Is Drug Use Among Truck Drivers Increasing?
Do We See Any Good News In The Data?
I do see a couple areas of potential good news in the data. I mentioned the first piece of good news in the last paragraph. The new commercial driver Clearinghouse may keep many dangerously impaired truck drivers off our roadways. With pre-employment screening and reporting, these drivers can be prevented from driving trucks. Second, it appears that while overall drug use in the workforce increased, use did not increase among much of the positions considered safety-sensitive. Long-term, hopefully we will see a decrease in drug impairment among safety-sensitive jobs like commercial driving. Throughout the labor market, I’m