Post-Accident Drug Testing and Consent: Evaluating Reasonable Suspicion Under Florida Workers’ Compensation Law
The claimant was injured in a workplace accident and subsequently hospitalized. Following the incident, the employer and insurance carrier promptly filed an Emergency Motion to Preserve Evidence--specifically, the claimant’s blood and urine samples. After the motion was granted, they sought drug testing of the preserved samples through an Unopposed Motion for Release of Blood Sample. The legal dispute centers on whether there was a valid basis for post-accident drug testing under Florida law, particularly given the claimant’s prior consent to testing and his admission of alcohol consumption the night before the accident.
The claimant suffered a work accident and was hospitalized. The employer/carrier filed an Emergency Motion to Preserve Evidence, specifically blood and urine samples. Shortly after the motion was granted, the employer/carrier requested the release and drug testing of the samples in its Unopposed Motion for Release of Blood Sample.
Under Florida Statutes section 440.09(7)(b), if an injured employee tests positive for drugs after an accident, the law presumes the injury was occasioned primarily by the influence of drugs upon the employee and, accordingly, does not compensate the injured employee. In the absence of a Drug Free Workplace policy, an employee is permitted to rebut the presumption by clear and convincing evidence showing the intoxication did not contribute to the injury.
As part of the pre-employment process, the claimant successfully passed a urine drug test. The process also included the execution of various forms, including his consent to submitting to a drug test at any time.
This compensable accident occurred when the claimant fell from a ladder while trimming tree branches using a chainsaw. Following the accident, the employer expressed to the carrier its desire to have the claimant tested for the presence of drugs and alcohol. Because it did not send a representative to the hospital to acquire blood and urine samples from the claimant, the employer/carrier relied on obtaining the samples obtained by the hospital.
In addition to not attempting to get the claimant’s blood and urine samples, the employer’s representative testified their investigation did not reveal that the claimant exhibited any indicators to raise suspicion of intoxication, such as behavior, speech or job performance when the accident occurred. Rather, its request for drug testing was based solely on the occurrence of the accident.
The judge of compensation claims found no attempt was made by the employer or the carrier to obtain their own blood sample from the claimant immediately following the accident or after his admission to the hospital. The claimant did testify, however, that he had consumed five or six beers at a birthday party between 9:00 p.m. and 1:30 a.m. during the evening prior to and the early morning hours on the date of accident.
The claimant argued there was no basis for the employer’s request to conduct reasonable suspicion drug testing on the samples. Notwithstanding the lack of indicators of intoxication being exhibited by the claimant while he was working when the accident occurred, the judge found that there was a basis for reasonable suspicion testing under subsection 440.09(7) based on the claimant’s admitted beer consumption.
Accordingly, the judge found that, regardless of whether the ultimate test results were admissible, the claimant consented to the employer’s right to demand a drug test after the work accident since he signed documents when he was hired agreeing to the same. The judge ordered the hospital to release the blood samples to the employer/carrier’s agent for testing.
What’s Hot in Workers’ Comp, Vol. 29, No. 5, May 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.