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If you fail a drug test administered by your employer after a work-related injury, you still might be eligible for workers' compensation benefits, but you'll probably need a lawyer to help you get them. Workers' comp is insurance that most South Carolina employers with four or more people on the payroll are required to carry. It pays all Some drugs remain in your bloodstream after their actual influence on you has worn off. If, for example, you smoke marijuana over the weekend and suffer a work-related accident on the following Tuesday after the effects of cannabis have dissipated, you still might test positive for THC (the psychoactive chemical in marijuana), which can show up in a urinalysis test as much as 30 days after it's ingested. In such a case, the burden is on your employer to prove that you were still under the influence at the time of your accident and that the drug(s) or alcohol in your system caused your accidental injury.
You Could Be Impaired but Still Eligible
If you're still under the influence at the time of your injury, the substance(s) in your system might not be the reason for your accident. A forklift driver could lose control of the vehicle, strike you, and break your leg while you're standing at your workstation, where you're supposed to be. In such a case, the cause of your injury is the driver's negligence, not your drug or alcohol impairment, so you cannot be denied benefits. In some cases, stated company policy might require that you be terminated for being under the influence on the job, but you're still entitled to workers' comp benefits regardless of the results of your drug test because your impairment did not cause your accident. Your employer may not simply fire you and forget about your claim.
Problems With Workplace Drug Tests
A positive drug test result might be invalid if a urine sample is improperly handled or the tester does not follow the protocol approved by the Occupational Safety and Health Administration (OSHA). Positive tests resulting from the use of medication (including medical marijuana) prescribed by your doctor can also be invalidated. If you take medication for a disability, you're protected by the Americans with Disabilities Act (ADA) and cannot be penalized. If you do test positive, your employer is required to give you a follow-up test in case your first result was a false positive, which is not uncommon.
What to Do If You're Injured on the Job
If you suffer a work-related injury, you must take specific steps to file a successful workers' comp claim. Even if you think you might test positive for drug or alcohol use, report your accident to your supervisor immediately and submit to the required drug test. Seek medical treatment from a doctor approved by your employer's insurance company. File your claim for benefits by submitting Form 50 from the website of the South Carolina Workers' Compensation Commission (SCWCC).
Contact a workers' compensation attorney without delay if your employer or the insurance company:
- Fails to give you a follow-up test after a positive result
- Denies your claim simply because you've failed a drug test
- Retaliates against you for filing a claim
- Fails to follow OSHA-approved testing protocol
In any of these cases, you're entitled to a SCWCC hearing in which you are entitled to be represented by an attorney. If your claim is still denied, your lawyer may appeal your case in SC civil court.
