Public pressure in the early 1900’s led to the U.S. government adopting employee safeguard acts which eventually turned into the workers’ compensation laws in America.[1] An employer’s interest in protecting, among other things, the safety of its employees in the workplace may implement a Drug-free workplace program. If this program includes post-accident testing, important questions are raised about actual impairment over the mere presence of metabolites in the employee’s system. If an employee has caused, contributed to, or has been involved in an accident while at work following the use of illicit substances, the employee may be denied workers’ compensation benefits in Florida.[2] For example, John Doe takes a vacation to a country where recreational marijuana use is legal. He purchases a baked good which contains THC, the psychoactive component found in marijuana. John experiences its impairing effects for less than 24 hours, but three days later, on his first day back to work, he is subjected to a reasonable suspicion drug test after an injury at work. The test result renders a positive for marijuana use. Should John be denied workers’ compensation benefits for his positive result?

In Brinson v. Hospital Housekeeping Services LLC, Bonita Brinson was a housekeeper at a Florida hospital that implemented a drug testing policy in order to promote a drug-free workplace.[3] The policy, which Ms. Brinson signed upon hiring, read as follows: “I have been fully advised that if I am injured on the job, regardless of how minor the injury may seem, I am to report that injury to my supervisor. All employees that are injured are subject to a drug test.”[4] Ms. Brinson also signed a “Drug Free Awareness” policy acknowledging that she “may be asked to provide (if there is reasonable suspicion . . .) body substance samples . . . to determine whether illicit or illegal drugs . . . have been or are being used.”[5]

Toward the end of one of her shifts, Ms. Brinson fell and dislocated her left shoulder.[6] After the incident, Ms. Brinson was taken to a local medical clinic where she was asked to provide a urine sample pursuant to her employer’s post-accident drug testing policy.[7] The Florida court indicated that in order to ask an employee to submit to a drug test, an employer must establish that: (i) they have enough reasonable suspicion to believe that an employee is using or has used drugs in violation of the employer’s policy; (ii) such suspicion is drawn from specific objective and articulable facts; and (iii) such facts and inferences may be based upon information that an employee has caused, contributed to, or been involved in an accident while at work.[8]

Ms. Brinson later filed a workers’ compensation claim, but the claim was denied by her employer-carrier after the results of the drug tests revealed the presence of marijuana metabolites in both an initial immunoassay test and a secondary confirmatory gas chromatography-mass spectrometry test.[9]

Under the Florida statutes, if an employee tests positive for the presence of illicit drugs, as Brinson did, it is presumed that any injury on the job was occasioned primarily by intoxication, or by influence of the drug upon the employee.[10] The statute goes on to indicate 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.”[11]

Ms. Brinson challenged the denial of benefits, but she failed to rebut the statutory presumption attributing her injury primarily to the influence of drugs.[12] The court noted that instead of trying to establish an external cause for her injury, Ms. Brinson focused on attacking the limits of drug testing and questioned the reliance of drug testing in workers’ compensation matters.[13] Ms. Brinson sought testimony from two doctors to give their expert opinion on the fact that drug tests do not conclusively indicate that drugs are active in the bloodstream or have caused impairment.[14]

If the employer has implemented a drug-free workplace, the presumption that an injury was caused by the drug use may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.[15] Here, the court determined that that the testimony did not present clear and convincing evidence that the influence of the drug did not contribute to the injury, thus the court ruled in the defendant’s favor.[16]

In this case, Ms. Brinson’s testimony demonstrated that she fully understood the drug testing policy her company implemented, that she acknowledged being drug-tested in the past, and that she knew she could be drug-tested again in the future.[17] Accordingly, the court ended up affirming the denial of workers’ compensation benefits.[18]

It is important for employers to know, however, that just because they do not operate a proper “drug-free workplace program,” Florida law may still allow them to drug test an employee after an accident.[19] Employers who are interested in implementing an official “Drug-free workplace program,” should read all of the requirements listed in Fla. Stat. Ann. § 440.102.

The court’s holding indicates that, at least in Florida, any positive post-accident drug test result creates a statutory presumption that the injury was caused by the employee’s drug use and the employee must then overcome this presumption with evidence that the injury was caused by another, external factor and not by the drug use itself. This means that John Doe’s employer may have grounds to deny John Doe’s worker’s compensation and that John would then need to overcome the presumption that his marijuana use, though legal at the time, did not cause or contribute substantially to the accident.

[1] See e.g., 34 Stat. 232 (1906); 45 U.S.C. § 51 et seq. (1908). [2] See Fla. Stat. Ann. § 440.102 (2020). [3] Brinson v. Hosp. Housekeeping Servs., LLC, 263 So. 3d 106, 108 (Fla. Dist. Ct. App. 2018). [4] Id. [5] Id. [6] Id. [7] Id. [8] Fla. Stat. Ann. § 440.102 (2020). [9] Brinson, 263 So. 3d at 107-108. [10] Fla. Stat. Ann. § 440.09 (2020). [11] Id. [12] Brinson, 263 So. 3d at 107. [13] Id. at 108. [14] Id. [15] Id. at 112. [16] Id. at 109. [17] Brinson, 263 So. 3d at 110. [18] Id. [19] See Fla. Stat. Ann. § 440.102(1)(n)(5) (2020).