A couple of recent news stories brought my mind back to the potential issues that will continue to draw attention in an evolving ever-friendlier American drug environment. The people who keep track of injuries tell us that the predominant causes of workplace injuries include "falls to lower level" (#4) and "roadway incidents involving motorized land vehicles" (#6). The two stories involved these common workplace challenges.
From Nebraska comes a decision on imputed relationships and responsibility: Supreme Court Rejects Suit Against Contractor for Fatal Accident by Drug-Using Trucker. WorkCompCentral reports that the Nebraska Supreme Court was asked to analyze the employment relationship, independent contractors, and statutory employers. That worker and employer relationships can be complex is nothing new.
Factually, Lyle Carman was a truck driver. He decided to drive a dump truck while "under the influence of amphetamine and methamphetamine." Anyone who has driven a large truck will likely tell you that they are no picnic to drive under the best of conditions. Thankfully the dump truck was empty when Mr. Carman drove it into another vehicle (#6), causing his victims to "tumble end over end into a ditch."
The 23-year-old driver of the other vehicle was killed. Her husband and infant daughter were injured. The survivors sued Carman. the owner of the trucking company which owned the vehicle (Lopez), and Werner Construction. "Werner had hired Lopez Trucking to haul debris." The survivors claimed that Werner was the "general contractor" and as such was a "statutory employer" and thus responsible for the actions of Carman.
The Nebraska Supreme Court concluded that Werner lacked control over the way in which Lopez Trucking performed the debris removal it was hired to perform. The Court noted that Werner did not direct the performance or tasks for Lopez and thus for Carman. Therefore, Werner was dismissed from the lawsuit. Control was critical to the analysis of "employee" versus "contractor."
The second article, also from WorkCompCentral was Worker Failed to Prove Discipline for Positive Drug Test Was Pretext for Discrimination. This describes a case from New Jersey. It involves an employee, Mr. Baker, who "fell down a flight of stairs" (#4). Mr. Baker was treated for his work injury and returned to work almost a year later.
Mr. Baker felt inappropriately treated upon returning to work. He alleged that the company discriminated against him, including comments about the cause of his accident, allegations of drug addiction, and denial of a requested transfer to avoid particular coworkers. The month before he had returned to work, Baker was informed he had been selected for a random drug test, which was actually performed the month after he returned. That test was positive for amphetamine.
Mr. Baker was therefore suspended for five months. He sued the employer alleging discrimination and retaliation. However, in his testimony, he admitted "he did not believe his suspension had anything to do with his injury or any perceived disability."
The commonality of these stories is obviously amphetamines. Amphetamines are stimulants, sometimes prescribed for attention deficit disorder, narcolepsy, and even obesity according to drugs.com. Methamphetamine is similarly a stimulant but produced for illicit use, according to the NIH. The first story illustrates how an employer, like Lopez Trucking and whomever else might be implicated by proof of "control," can be held responsible for events that occur when its employees are under the influence. The second story illustrates that when an employer seeks to enforce policies to prevent such use, they can be sued by the employees who are tested or disciplined.
Thus, an employer can be liable if drug use occurs by those in its control, and can be sued for attempting to prevent drug use by those employees. This puts employers in a difficult situation. It could put someone hiring an employer (like Werner) in a difficult and expensive situation. Drug use in the workplace is a reality, but how widespread? As the American public witnesses the use of prescribed, recommended (marijuana is not prescribed), and illicit drugs in the workplace, how will that affect the working relationship overall? How will the cost of resulting accidents be socialized in the costs we all pay for goods and services?
It is a curiosity. With the loosening enforcement on various substances, reports of increased use of methamphetamine, and the challenges of imported substances like Fentanyl, it is a subject that will likely remain prevalent in the news. It is also a probable topic in workers' compensation hearing rooms and appellate courts.
