Drug and alcohol use and misuse are on the rise:

• Drug overdose deaths in the U.S. reached a new high in 2021 to 107,622, an increase of nearly 15% from 2020, according to the Centers for Disease Control and Prevention .
• Marijuana and hallucinogen use reached the highest levels ever recorded in 2021 among young adults 19 to 30 years old, according to the National Institute on Drug Abuse .
• 1 in 10 Americans over age 12 had alcohol use disorder in 2020, according to the National Center for Drug Abuse Statistics .

Most people who misuse drugs or alcohol are employed, according the Substance Abuse and Mental Health Services Administration .

If employees show up to work under the influence, they can create safety hazards for themselves and others, since drug and alcohol use can impair senses, reflexes, memory and judgment.

In addition to creating safety hazards, workers with substance use disorder also miss two more weeks of work annually, and have higher turnover rates on average than other workers, according to the National Safety Council .

What employers can do

As an employer you can establish or update your drug and alcohol program to prevent the safety risks of drug and alcohol use on the job.

A workplace drug and alcohol program typically includes:

• A clear and communicated handbook policy on intoxication.
• Pre-employment drug and alcohol testing. When you make a job offer, it’s contingent on passing a screening for drug and alcohol use.
• Reasonable suspicion testing. This requires training your supervisors to identify the signs and symptoms of impairment, such as slurred speech or stumbling.
• Post-incident testing. You can set parameters in advance for what level of event will trigger a mandatory drug and alcohol test.
• An Employee Assistance Program (EAP). If you learn through your drug testing program that an employee is suffering from substance use disorder, your EAP can point them to resources to support their recovery.

What if there is an injury?

You may be wondering, what happens if someone is injured on the job while using drugs or alcohol?

Many states, including Minnesota, have several exceptions to the typical workers’ compensation no-fault system. One exception is the so-called “intoxication defense.” Minnesota’s law, which was first enacted in 1953, states that if the intoxication of the employee is the proximate cause of the injury, then the employer is not liable for workers’ compensation benefits. The burden of proof, however, is on the employer.

Iowa law states that if an injured employee fails the post-injury alcohol and drug tests, they will then carry the burden of proof to show that they were either not intoxicated, or that the intoxication was not the substantial factor in causing the injury.

In Wisconsin, the law states that if the employee is in violation of an employer’s policy regarding alcohol or drug use and that violation causes a work injury, the employee would lose all their rights to workers’ compensation benefits, except medical.

Colorado, which has had medical and recreational marijuana legalization in effect for several years, has one of the tougher laws. It states that if a drug test indicates the presence of a controlled substance, including marijuana, in the employee’s system during working hours, then it is presumed that the employee was intoxicated, and the injury was caused by the intoxication. The employee would then have to rebut this presumption by presenting clear and convincing evidence. Indemnity benefits would be reduced by 50% if the employer prevailed on this defense, but medical benefits would not be affected.

It’s important to report workers’ compensation injuries to SFM in a timely manner, and if intoxication could be an issue in causing the work injury, early investigation and identification of witnesses is important.

An employer should also consult an attorney if they are considering a drug testing program as some states, including Minnesota, have complex drug testing laws.

How SFM’s helping prevent opioid addiction

SFM has a prescription drug clinical review nurse on staff who helps us protect workers from the risk of opioid painkiller addiction.

Opioids are typically recommended for short-term pain relief due to an injury or surgery. Our nurse intervenes in cases when workers are still taking the addictive painkillers three weeks after surgery by sending a letter to their treating physician. Doctors have been cooperative in helping get workers off these drugs before an addiction can develop.

“Opioid addiction can destroy lives and tear families apart,” said Director of Medical Services Ceil Jung. “If we can help free an individual from addiction or prevent one from ever taking root, that’s something we can really feel good about.”

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.