By Jared Vessell, VBM Attorney

Article written April 6, 2022

The Missouri Legislature has granted employers and their insurers a defense in instances in which an injury occurs in conjunction with or caused by the employee’s use of illegal drugs and/or alcohol. RSMo. 287.120.6 governs this provision. It grants a 50% reduction in benefits if it can be shown that the employee’s injury was sustained in conjunction with the use of illegal drugs or alcohol and a forfeiture of benefits if the use of the drugs or alcohol caused the injury or death. The caveat for this provision is that the employer must have a policy or rule that relates to a drug-free workplace or addressing the use of drugs and alcohol in the workplace. See 287.120.6 below:

287.120. 6.
(1) Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.
(2)  If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer's rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.
(3)  The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury.  A preponderance of the evidence standard shall apply to rebut such presumption.  An employee's refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer's policy clearly authorizes post-injury testing.
(4)  Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee's system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:
(a)  The initial testing was administered within twenty-four hours of the accident or injury;
(b)  Notice was given to the employee of the test results within fourteen calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
(c)  The employee was given an opportunity to perform a second test upon the original sample; and
(d)  The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

In addition to the provisions addressing the drug/alcohol policy requirements and the penalties for injuries sustained in conjunction with and/or caused by the employee’s use of alcohol and illegal drugs, the legislature has also given additional provisions for the employer/ insurer that creates a presumption that the injury was sustained in conjunction with the nonprescribed controlled drug. This however requires affirmative actions on behalf of the employer/ insurer to be successful even with the granted presumption. The employer must first have a policy that relates to the drug free workplace and that addresses drug and alcohol use on the workplace. The policy should address all possible issues with drugs and alcohol including the possession, solicitation of or for, sale of non-prescribed drugs. Not only should the policy prohibit these activities, but the policy should also address impairment or being under the influence. The policy can further address the presence of any detectable amount of the prohibited substances while at work or on the company property and work off premises being done on behalf of the company. The policy should also make it clear what is defined as a prohibited substance. This can be done by incorporating the language of the statute itself. 287.120.6 (3) mentions nonprescribed controlled substances as defined by RSMo. 195.010.

If the employer has the policy in effect at the time of a workplace injury for an employee that tests positive, they may have the ability to pursue the presumption afforded in 287.120.6.

1. The policy should make it clear to all employees that they are required to submit to drug testing within 24 hours of the alleged injury;
2. The testing should be done by a medical provider or facility that uses the proper testing in which the results are confirmed by mass spectrometry and that they use “generally accepted medical or forensic testing procedures”;
3. When the test results are provided by the testing facility to the employer, it is important for the employer to provide the results to the employee within two weeks (14 days) of receiving the test results; and
4. It is important that the original sample be secured, and the chain of custody be well documented. This is necessary because the employee under 287.120.6 (4) (c) has the right to have a second test performed upon that sample if they wish.

All provisions of 287.120.6 (4) must be met by the employer for the presumption that the prohibited substance was used in conjunction with the injury.

While not required by statute, it may be prudent to attach disciplinary action for employees that fail to report the injury within 24 hours of it occurring. In addition to penalties for failure to report the injury, the employer’s policy should address incidents in which the employee refuses a request to submit to testing. In the situations in which an employee refuses testing, there is a forfeiture of benefits under 287.120.6 (3).

Remember these policies are not there merely for disciplinary purposes. The safety of all of the employer’s employees is at stake when employees are working under the influence. Policies like these are meant to ensure a safe work environment for all of the employer’s employees, not just those that are injured at work.

If you have any questions regarding drug policies, please do not hesitate to reach out to us.

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