Drug and Alcohol Testing for Injured Workers, Part II

Last week, we reported on the intoxication defense under Section 11 of the Illinois Workers’ Compensation Act, which creates a rebuttable presumption that the employee’s intoxication is the proximate cause of the injury when the employee refuses to submit to testing.  We recommended that employers review their post-accident testing policies to be sure that their policies encompass all workplace injuries.   In addition to the Section 11 intoxication defense, employers should be aware of other statutes that can help cut down on the risk of fraud.

OSHA allows employers to require injured workers to undergo a prompt medical exam, contemporaneous with the injury.  OSHA states that there must not be a change in the workers’ condition, so due to this short window of time for the examination to be done, it is advisable to schedule the exam at the same time the injury is reported.  OSHA also allows employers to pay for second medical opinions under the recordkeeping requirements found in Sections 1904.7(b)(3)(ii) and (b)(4)(viii) of OSHA.  The employer can then pick the “most authoritative” report.  The statute provides that employers must pay the whole cost of the medical exam outside of workers’ compensation.  Additionally, insurance companies and third party administrators cannot schedule or pay for the exams since it must be outside of the workers’ compensation system.  The costs can usually be covered under another budget though, such as risk management or health and safety.

Although these exams must be done outside of workers’ compensation, they can still be used and introduced in  workers’ compensation claim adjudication.   This provides another tool for employers, especially when they suspect fraud, or drug or alcohol related injuries.  If scheduled and done early enough, it is possible that these exams could also be used to determine whether there is any evidence of intoxication at the time of the accident.