First Quarter 2017

Missouri

By: Joshua Stegeman and Joel Birch

Question: Under Missouri law, if an Employee tests positive for drugs, can the employer deny or limit benefits for a workers’ compensation claim?

Short Answer: Yes, if the employer can show that the employee failed to obey any rule adopted by the employer relating to a drug-free workplace or the use of alcohol or non-prescribed controlled drugs in the workplace, the compensation shall be reduced fifty percent (50%) if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs. Mo.Rev. Stat. § 287.120.6(1). Additionally, if the employer can prove the use of alcohol or non-prescribed controlled drugs in violation of the employer’s policy is the proximate cause of the injury, then the compensation shall be forfeited. Mo.Rev. Stat. § 287.120.6(2).

Discussion:   The employer has the burden of establishing the elements of the intoxication affirmative defense. In applying Section 287.120.6(1), the employer must prove: (1) that the claimant violated a drug or alcohol policy in the workplace, and (2) that the claimant was under the influence while the injury occurred. For Section 287.120.6(2), to apply, the employer must still prove the two elements in subsection 1, but additionally must prove the use of alcohol or non-prescribed controlled drugs was the proximate cause of the injury.

Furthermore, for the employer to prove that the employee violated a drug or alcohol policy in the workplace, the employer needs to be able to show that the policy has been adopted. Employee: James Merkerson Employer: Tap Enterprises, Inc. Insurer: Self-Insured – Tpa: Alternative Risk Servs. Inc., 06-122640, 2010 WL 1830511, at 7 (Mo. Lab. Ind. Rel. Com. Apr. 28, 2010). It is not merely enough to have the record show that the policy is in a handbook, but that the employer is actively enforcing violations of the drug and alcohol policy.

Section 287.120.6(3) states that an employee’s refusal to take a test for alcohol or non-prescribed controlled substance at the employer’s request shall result in the forfeiture of benefits if the employer had sufficient cause to suspect use of alcohol or drugs, or if the employer’s policy clearly authorizes post-injury testing. Additionally, under this subsection, if an employee’s blood alcohol level is sufficient to constitute legal intoxication, it shall give rise to a rebuttable presumption that the voluntary use of alcohol was the proximate cause of the injury. A preponderance of the evidence standard applies to rebut such presumption. In Employee: David King Employer: Am. Employer Grp. III d/b/a Serv. Stars, LLC Insurer: Sunz Ins. Co. Additional Party: Treasurer of Missouri As Custodian of Second Injury Fund (Open), Injury No. 13-063318, 2014 WL 7407273 (Mo. Lab. Ind. Rel. Com. Dec. 30, 2014), the employer gave the option to give up his workers’ compensation claim in order to not take a drug test. However, the court found that there must be an explicit refusal to take the drug test. Id. at 14. Additionally, the court found that the employee handbook does not give supervisors the right to offer alternatives to avoid a positive drug test. Id.

However, positive drug tests do not necessarily prove that the claimant was intoxicated at the time of the accident or that the drugs or alcohol necessarily caused the accident. For example, many drugs, including marijuana and cocaine, will stay in the user’s system days or even weeks after the effects have dissipated. Therefore, it may be necessary to provide outside facts, such as witness testimony, to prove that the claimant was intoxicated at the time or injury, or provide expert testimony.

The following cases are examples where the claimant tested positive for drugs; however, the court found the claimant was not intoxicated when the injury occurred.

In Employee: Richard L. Hertzing Employer: Beck Motors Insurer: Mo. Auto. Dealers Workers Comp. Tr., 09-025872 (Mo. Lab. Ind. Rel. Com. Jan. 9, 2015), the claimant injured his hip on a fall off a ladder sustained in the course and scope of his employment. While the claimant tested positive for cocaine metabolites, the court found that since the testing was done for medical purposes only, the procedure used in handling the urine sample was “not as tight” and could produce false positives and negatives. Id. at 4. Additionally, the court credited the claimant’s testimony and found that he did not use cocaine at work or in the few days prior to the work injury. Id. Thus, the court held that the claimant was not intoxicated at the time of the injury, nor did he violate any workplace drug policy. Id. at 5.

In Employee: Tyler Kelsey Employer: Loy Lange Box Co. Insurer: Accident Fund Ins. Co., 08-114802, 2013 WL 2151996 (Mo. Lab. Ind. Rel. Com. May 16, 2013), the claimant injured his left upper extremity. Id. at *5. The claimant tested positive for marijuana, however, the test showed that THC, marijuana’s active ingredient that causes the physical effects, was no longer in the claimant’s system. Id. at *6. The court found that there was evidence suggesting the claimant was not physically impaired from the marijuana at the time of the accident. Id. Furthermore, even though the experts agree that the claimant ingested marijuana before the injury, it is difficult to pinpoint the exact time of usage, as marijuana can stay in the user’s system for weeks. Id.

Based on these cases and the statutes, the best course of action is for the employer to enact a no exceptions drug and alcohol-free workplace policy and enforce it, as well as provide notification to employees of the policy. The employer should also institute automatic post-injury drug testing for all injuries or at least those in which the employer suspects use of drug or alcohol could have contributed to the injury. The drug test will permit the employer to preliminarily determine if drugs were present in the system so that the employer can then reduce benefits by 50%. The drug test will also allow the employer to build a case to deny benefits if the employer can prove those drugs were the proximate cause of the accident. While a drug test may not be enough to prove a Section 287.120.6 reduction in compensation, it is still important evidence needed to reduce the employee’s compensation completely or by 50% and provide time for the employer to perform an investigation and gather additional evidence to prove the drugs were the cause of the accident.