Written by attorney Draper Tobias Rodriguez

Post Injury Drug Testing and Texas Workers' Compensation

I have represented a number of clients who submitted to drug and alcohol testing after a work-related injury simply because they thought "they had to." While failing to submit to a drug test after a work-related injury may impact your employment with your current employer, it has no impact on a Texas Workers' Compensation claim. In Texas, there is a presumption the injured employee was intoxicated at the time of the compensable work-related injury if the Insurance Carrier has a drug test which demonstrates a level of intoxicating substance within a resonable time after the work-related injury. The presumption of intoxication only arises if the Insurance Carrier has testing demonstrating the level of intoxicating substance, it does not attach merely because someone may have stated the injured worker was intoxicated, and it most certainly does not attach if the injured worker refuses to submit to a drug and alcohol test after the work-related injury.

I am certain refusing an employer's request for a drug test sample after a work-related injury may effect the injured employee's employment status negatively; i.e. he will most likely be terminated for refusing the testing. However; with regard to a Texas Workers' Compensation claim, there exists not requirement for an injured worker to submit a specimein for drug and alcohol testing. Therefore, the payment of benefits cannot be conditioned on the injured employee's acquiesence to drug and alcohol testing. Moreover; if the presumption of the intoxication of the employee can only occur when the Insurance Carrier has a drug or alcohol test demonstrating the existence of an intoxicating substance in the blood the injured worker may be better served by refusing the give sample in the first place.

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