I learned a long time ago not to expect cases to go normal or for insurance companies or employers to follow the rules. A great example of this came up on a case I was recently consulted on.
A caller was asked to take a Drug test following a work accident. That’s normal and the employer is allowed to ask for a drug test after the accident. A positive test doesn’t mean you lose your case, but it does give them a basis to deny your case and creates a “rebuttable presumption” that you were high when the accident happened. In plain English it means that you can use witnesses, your own testimony, a description of you got hurt, etc. to show that the drugs in your system had nothing to do with how you got hurt.
It’s typical that a drug test takes place right after the accident or within 48 hours. The guy that called me was asked to take a drug test SIX MONTHS after the accident happened. That is nuts. Even if it was positive it would not show with any reasonableness that he was impaired when he got hurt.
What I believe happened is that some HR person didn’t do their job and is trying to cover their butt by getting any sort of drug test on file. Whether or not the worker has to take it is more of a question for a labor lawyer than work comp, but if it was my client I would tell them that if they did fail the test and their benefits got denied we’d have a good shot at penalties and fees for an unreasonable denial of a claim.
Common sense essentially needs to prevail in a case like this. That of course doesn’t always happen. Whether or not you have to take a test this late in the game depends on the company drug testing policy. In general though, the longer they wait, the more likely it is that the test is meaningless.
Bottom line for you is that you shouldn’t freak out if you take a drug test and fail or know you are going to fail. It doesn’t end your case, it just makes it harder. But if they want the drug test to cover their mistakes then you can rest assured that as far as work comp goes, it’s meaningless.
Any questions about drug tests or anything else related to Illinois Workers’ Compensation law? Contact us any time to speak with one of our lawyers for free.
This post first appeared on Illinois Workers Compensation Law Blog | LAW OFFIC, please read the originial post: here