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Drug-Free Workplaces, Followed by Drug-Free Benefits?

In recent years, policy makers in numerous states have considered banning welfare, unemployment benefits or workers’ compensation to employees or ex-employees who test positive for drug use. Proponents say that public monies should not be given to those who engage in illicit drug use and likely misuse payments on their addiction. Opponents say that these policies target the already-vulnerable who may be trying to get back on their feet and argue that drug testing procedures can be just as costly as the doled-out payments. The Kentucky legislature may take up the issue in 2014, as it has already showed interest in such measures during past sessions.

In 2007, a bill was passed in Kentucky that authorized a voluntary drug-free workplace program to be implemented by the Kentucky Department of Workers’ Claims. Employers who choose to participate can create their own drug-free workplace program and have it certified by the Department of Workers’ Claims. Once certified, the employer is entitled to a 5% reduction in the workers’ compensation insurance premium. Certified programs generally include employee training, drug and alcohol testing protocols and information about treatment facilities for those in need.

In the 2013 Regular Session, Senate Bill 157 sought to create another drug-free program within the Commonwealth’s Labor Cabinet and establish a process of certification for employers, similar to the program already in existence. Further, the bill included language that would make it more difficult for an injured employee that tested positive for unlawful or unauthorized drugs at the time of the injury to qualify for workers’ compensation. Specifically, an injured, drug-positive employee would have the burden of proof in establishing, by clear and convincing evidence, that the drugs were not the proximate cause of the injury. In addition, the bill would have amended the unemployment compensation statute to make it misconduct for an employee of a certified drug free workplace to refuse to take a drug test; discharge due to misconduct makes an ex-employee ineligible for unemployment compensation. Senate Bill 157 did not make it out of the Senate.

States that have passed legislation tying benefits to recipients’ drug use have had mixed results. A New York Times article reports that Florida’s welfare drug testing cost the state an additional $45,780.00 instead of saving taxpayer money. But Florida’s law required every recipient to be drug tested, whereas other states require “reasonable suspicion” before a recipient is tested. In some cases, the courts have stepped in to declare such laws unconstitutional and violation of privacy.

Will Kentucky officials file a bill similar to last year’s Senate Bill 157? We will keep you updated on this issue if it is again brought to the legislative forefront.

Ben Riddle

 

 

 

 

 

 

Benjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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