Almost all would agree that drug and alcohol use have no place in the workplace and that the use of these substances should not be encouraged or rewarded. Yet the Arizona Supreme Court, in Grammatico v. Industrial Commission, determined that employees injured in the course and scope of their employment have an absolute right to recover compensation from the employer’s workers’ compensation insurance, even when the employee was under the influence of drugs or alcohol when the on-the-job injury occurred.
The Court ruled on two workers’ compensation statutes: One which denied workers’ compensation benefits when an employee failed to pass a drug test after an accident, and one which denied compensation when alcohol or substance abuse was a substantial contributing cause of the injury. These two statutes, which attempted to curtail the use of drugs or alcohol by denying workers’ compensation when drugs or alcohol are in the employee’s body at the time of the accident, were ruled unconstitutional by the Arizona Supreme Court.
In Grammatico, the Arizona Supreme Court consolidated two cases where workers were denied workers’ compensation benefits because post-accident blood tests revealed the presence of drugs or alcohol. David Grammatico was injured when he fell while working on drywall stilts. His post-accident drug test was positive for marijuana, amphetamine, and methamphetamine. Mr. Grammatico admitted to using marijuana and methamphetamine the two days before the accident, including within seven hours of his shift on the day of the accident. Austin Komalestewa was injured while trying to fix a jammed conveyor belt. His post-accident blood test revealed the presence of alcohol. Mr. Komalestewa admitted to having four mixed drinks the previous night, however, an expert testified at the worker’s compensation hearing that, based on the blood test, Mr. Komalestewa’s blood alcohol level would have been at least 0.176 at the time of the accident, more than twice the legal limit for a DUI citation. Based on these facts both Mr. Grammatico and Mr. Komalestewa were denied workers’ compensation benefits because alcohol or drugs were a substantial contributing cause of their injuries.
The Arizona Supreme Court determined that the Arizona Constitution mandates that Arizona’s worker’s compensation statutes provides no-fault coverage for injuries that occur within the scope of employment. Therefore, the Court stated that “unless and until the constitution is changed, the legislature cannot abrogate claims for workers’ compensation for injuries wholly or partially caused or contributed by necessary employment risks or dangers solely because an employee fails to pass…a drug or alcohol test.”
As noted in the Grammatico case, alcohol and illegal drug use before work or during work increases the chances of being injured on the job. Since injuries that occur while drugs are present in the employee’s body no longer preclude workers’ compensation benefits, workers’ compensation premiums will likely rise. The Court’s decision requires employers to be even more proactive about testing employees for drug use. Nothing in the Court’s decision affects an employer’s ability to require employees to take legal drug tests, nor does the decision affect an employer’s ability to terminate an employee for failing such. The decision only requires that an employee, who is injured while working within the scope of his or her employment, is entitled to workers’ compensation regardless of the presence of drugs or alcohol in the employee’s body.
According to current law, testing for the presence of drugs or alcohol must be carried out within the terms of a written policy that has been distributed to every employee subject to testing. The Statute (A.R.S. Title 23, Chapter 2) permits all compensated employees (including officers, directors and supervisors) to be uniformly included in the testing policy, and to undergo drug testing on a random or chance basis.
An employer may require the collection and testing of samples for any job-related purposes, consistent with business necessity including: 1. Investigation of possible employee impairment or accidents in the workplace; 2. Maintenance of safety for employees, customers, clients or the public at large; 3. Maintenance of productivity, quality of products or services or security of property or information; or 4. Reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or work environment.
As an “incentive” for employers to adopt a testing policy, the State Legislature passed House Bill 2405 which allows an insurer to reduce an employer’s workers’ compensation insurance premium by up to five percent. Check with your insurance carrier to see whether the law applies to your workers’ compensation policy; and, if you don’t have a drug or alcohol testing policy in place, contact your attorney for assistance.
Thank you to Isaac Rothschild for his assistance with this article.
