Injury, Drug Testing and Your Workers’ Comp Benefits

No one can deny that drug use is harmful, 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 within the city 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.

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.

Do you have to take a drug test for workers’ comp in Colorado?

While a drug test isn’t required outright like in other states, employers in Colorado can require an injured worker to 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).

What happens if you fail a drug test for workers’ comp in Colorado?

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 a “presumption of intoxication” and thus reduce all non-medical benefits (like wage loss 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.

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 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.

Colorado bill to protect workers after a positive drug test sputters out

A Colorado bill proposed by Rep. Jovan Melton (D-Aurora) would have kept employers from firing their workers if they tested positive for marijuana, so long as the use happened while the employee was away from work.

However, the bill was killed in a House committee on February 20, 2020.

If it had passed, HB 1089 wouldn’t have been the first bill dealing with marijuana use and workers’ compensation in recent years. According to Work Comp Central, “In 2015, the court ruled in favor of broadcast company Dish Network, which had fired an employee who tested positive for marijuana that was prescribed to treat epilepsy.”

In this case, attorney Mack Babcock, founder of Babcock Tucker and the Treasurer for the Workers’ Injury Law and Advocacy Group (“WILG”), disagreed with the ruling, stating that the ruling “wasn’t a great decision.” Moreover, if HB 1089 had passed, it would have been at odds with the court’s decision on the case.

Babcock supported HB 1089, believing that such a bill would have led to a “pretty significant impact in terms of Colorado workers’ comp cases.” Specifically, the bill would have helped fix some of the issues Colorado is facing in regard to work-related marijuana charges.

“We have these workers’ comp cases,” Babcock said. “The person is hurt at work. They were a good employee. They go to a medical appointment to try to get back to work as quickly as possible, as most people want to.”

Babcock goes on to discuss where the problems arise when an employee has to be drug tested after an accident, and is then fired when the test comes back positive. If the termination was “for cause,” then the injured worker is not owed wage loss benefits.

Since marijuana is legal for both medical and recreational purposes in Colorado, Babcock says there is prevalent marijuana use in the state. If HB 1089 had passed, he believes the law would have helped resolve the question of whether a termination in these cases was “for cause,” or simply a retaliatory measure against the injured worker.

Unfortunately, this effort at meaningful change was shot down by state lawmakers this time. For Babcock, that means that his mission to advocate for injured workers is as important as ever. He’ll continue fighting for change at the state and national level, while also representing injured workers throughout Colorado.

Were you denied workers’ comp in Colorado due to a positive drug test? We can help!

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.