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Injury, Drug Testing and Your Workers' Comp Benefits

No one can deny that drug use is harmful and not prudent. But using drugs or alcohol during work hours is especially dangerous and can lead to devastating accidents on the job.

In short, Colorado is considered an "open state" – meaning there are no limits or requirements for drug testing in the workplace. Employers are not required to have a written drug policy except for unemployment and workers' compensation purposes.

An exception to this rule can be found in Boulder. Employers within the city of limits of the Denver suburb are allowed to drug test employees based on "reasonable suspicion" but prior notice is required. No random testing is allowed.

While a drug test isn't required outright like in other states, employers in Colorado can require an injured worker undergo a post-accident drug test under any circumstance, provided the employer has a written drug policy

If a written policy is in place, your employer does NOT have to suspect drug use before requiring a drug test.

According to workers' comp statutes in Colorado, employers must pay for any testing they require of their employees. Drug tests must also be completed in a facility certified by the National Institute on Drug Abuse (NIDA).

If a test comes back positive, it doesn't necessarily mean you will lose all of your workers' comp benefits. In order for your employer to claim "presumption of intoxication" and thus reduce all non-medical benefits by 50%, they will need to prove that your test was conducted in a certified/licensed facility and that a second sample has been preserved for re-testing.

Medical benefits for treating your injury are not affected, regardless of the results of any drug tests.

And just because you test positive doesn't necessarily mean that's the end of the story.

For example, if the second sample comes back negative, the burden falls back on to your employer to prove "..by a preponderance of the evidence" that your injury was caused by intoxication. "Preponderance of the evidence" is a lower legal standard than "clear and convincing" evidence. If they are able to establish pre-requisites to get the presumption, it is then assumed that the injury was indeed caused by intoxication.

On the other hand, a claimant (i.e. injured worker) can then show that the injury was NOT caused by intoxication by clear and convincing evidence, which usually is accomplished through a re-test at the employee's expense.

As we stated earlier, a positive test doesn't necessarily mean you will lose all benefits. In fact, workers' comp medical benefits are not affected at all – regardless of fault or whether you were intoxicated.

This is because workers' comp in Colorado and across the U.S. is a "no-fault" system. In exchange for immunity from lawsuits, employers agree to take on the risk and expense of workplace injuries. Conversely, workers receive a guaranteed safety net in the event of an on-the-job injury in exchange for not suing their employer under common liability laws.

Drug and alcohol use/intoxication can have some consequences though for any potential severance pay or unemployment benefits. Testing positive for drug or alcohol usage can disqualify you from receiving unemployment compensation. You can get these benefits restored though if you provide documentation that you're attending a drug treatment program.

If you've sustained an injury at work and tested positive for drugs/alcohol, do not let your employer skip out on their obligation to treat your injury.

While many employers claim intoxication as the cause of an injury, they rarely succeed in denying non-medical benefits due to intoxication (…except in the case of a DUI while driving for work). This is especially true in cases where an injured worker tests positive for marijuana. In cases like this, establishing that the injury was caused by intoxication is nearly impossible.

Consult with a Colorado attorney experienced in helping injured workers obtain their benefits to ensure you are not shortchanged or left with the expense of treating any workplace injuries.

Continue reading these related articles for more information…

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Discuss the details of your claim with a Colorado Workers' Compensation lawyer at The Babcock Firm today. No matter where you are in the state of Colorado, if your case falls within our practice area and we feel our representation can benefit you, an attorney will conduct an in-depth consultation at no charge. We are here to help you secure a successful outcome. Contact us today and learn more about how representation works.


While the Babcock Law Firm tirelessly works to obtain successful outcomes for its clients, prior positive outcomes are no guarantee of future success. Indicating prior positive results is in no way intended to guarantee future results.

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