Question: We had an employee hurt themselves in a forklift accident and test positive in a post-accident drug test carried out based on our policy. If we terminate them, will they still get workers’ compensation benefits?
Answer: Yes, we would expect them to be eligible for workers’ compensation benefits such as time loss (wage replacement benefits). As frustrating as that sounds, Washington’s Department of Labor and Industries (L&I) generally won’t stop paying time-loss benefits in these situations until you offer approved light duty. This leaves employers in a bind. While it’s critical to limit the payout of unnecessary workers’ comp benefits because of the costs they represent for the company, most employers are hesitant to offer light duty after incidents like this.
Thankfully, you have options that can help minimize workers’ comp costs, while addressing the obvious safety and performance issues with this employee. One approach is to include a drug testing expectation as a part of the valid light duty return-to-work offer. This helps ensure the employee is drug-free as they return to work. Another option would be to make a last-chance agreement (LCA) a condition of the light duty offer. An LCA typically provides for undergoing a mandatory evaluation by a substance abuse professional, passing a return-to-duty test, following the education/treatment plan directed by the substance abuse professional, and being subject to follow-up testing during a specified period of time. This provides an avenue to confirm the employee’s drug-free status as they work in the light duty role. See our Model Form, Last-Chance Agreement, and work with your Vigilant Law Group employment attorney to tailor it to your situation.
If you participate in Vigilant’s Washington workers’ compensation Retro program or use Vigilant’s workers’ comp claims management services, be sure to work with your designated Vigilant workers’ compensation claims manager. They can help you understand the benefits of these approaches and steps you need to take to properly manage the claim. For questions about drug testing in general, connect with your Vigilant Law Group employment attorney.
