Can Agencies Drug Test Injured Workers?

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By Frank Ferreri, November 15, 2022

Let’s say an employee who is going about her business on the job slips and falls, resulting in an injury for which she files a claim for workers’ compensation benefits. Someone at the agency thinks that it wasn’t work that caused the spill but the fact that she was under the influence of drugs at the time of the injury.

The agency, wanting to get the record straight, decides the employee needs to undergo drug testing. Can the agency do such a thing and what sort of considerations apply when an agency has made the call to test for drugs?

The following breaks down what Congress, the Office of Workers’ Compensation, and the Employee Compensation Appeals Board (ECAB) have had to say about drug testing for workers injured on the job.

First off, while it isn’t the law it should be pointed out that Executive Order 12564, signed into effect by President Reagan in 1986, maintains that Federal employees are required to refrain from the use of illegal drugs. The EO charges agencies with establishing programs for drug testing. So, Federal employees shouldn’t be using drugs in the first place, and agencies have the authority to take action against those who do.

In the specific context of workers’ compensation, under 5 USC Sec. 8102(a), Congress has declared that agencies are not required to pay workers’ compensation benefits for a disability or death that is proximately caused by the intoxication of the employee. Unlike Reagan’s EO, it’s not just illegal drugs that are a problem. That’s because on the regulatory side of things, in 20 CFR 10.220, OWCP clarified by implication that the “intoxication” referred to under the statute is “intoxication by alcohol or illegal drugs.”

In 2009, OWCP released Publication CA-810, which, among many other things, spelled out that an agency defending against compensating an employee must present a record that establishes the extent to which the employee was intoxicated at the time of the injury and the particular manner in which the intoxication caused the injury.

So, while the work doesn’t stop by proving that an employee was under the influence of illegal drugs or alcohol, it is a necessary first step to controverting a claim.

The 2009 publication emphasized that an agency looking to proximately link an injury to an employee’s intoxication does not have “any additional authority to test employees for drug use beyond that which may exist under other statutes or regulations.”

An agency claiming the employee’s intoxication as a defense should, per the FECA Procedure Manual, obtain a statement from the physician and hospital where the employee was examined following the injury that describes the extent to which the employee was intoxicated and the manner in which the intoxication affected the employee’s activities. As part of this, the manual directs agencies to obtain “the results of any tests made by the physician or hospital to determine the extent of intoxication.”

Contours of the law

To see how the law plays out in the real world, it’s necessary to look at ECAB decisions that have weighed in on the issues of injured employees, their intoxication, and agency-employed drug testing.

Here’s a look at a few cases for insight on those subjects:

N.P. and U.S. Postal Service, 2011 WL 4499581, No. 10-952 (ECAB July 26, 2011)

What happened? A letter carrier alleged that she injured the left side of her head, broke her left elbow, and scraped her left knee when she fell after making a delivery.

The agency’s argument. The agency controverted the claim, asserting that she was intoxicated at the time of the injury due to her consumption of narcotics and, therefore, did not sustain an injury in the performance of duty, which is a required showing for an employee to obtain benefits.

The drug testing issue. Because the carrier appeared to be intoxicated – allegedly she was slurring her speech and falling in and out of consciousness and another patient expressed concern that the carrier had been driving — the hospital where she received treatment for her injuries administered the test, which came back positive for opiates. Further analysis revealed the presence of “an extremely high concentration of morphine and a significantly elevated level of oxycodone.”

How the ECAB ruled. According to the board, the evidence, including the drug test, wasn’t “clear” that the carrier was intoxicated at the time of her fall and did not establish that intoxication was the proximate cause of the accident. “The evidence establishes only the possibility that [the carrier] was intoxicated … at the time of injury.”

T.F. and U.S. Postal Service, 2008 WL 5467738, No. 08-1256 (ECAB Nov. 12, 2008)

What happened? A mail carrier alleged that she experienced an injury while driving for work when she hit an embankment of gravel, which caused the vehicle to hydroplane and led to a spinal injury.

The agency’s argument. Drug testing came back positive for marijuana and opiates, the agency denied the carrier’s claim.

The drug testing issue. The test was administered two full days after the accident, and the report indicated that the tests were “all … unconfirmed” and noted that no chain of custody was maintained on the specimens received.

How the ECAB ruled. The agency didn’t meet its burden to establish the affirmative defense of intoxication because it did not provide any discussion of why intoxication was the proximate cause of the accident. Instead, the evidence established that “at the time of her injury [the carrier] was delivering mail on her usual mail delivery route.” Accordingly, the carrier sustained an injury in the performance of duty.

In the Matter of Elaine Hegstrom and U.S. Postal Service, 2000 WL 1285967, 51 E.C.A.B. 539 (ECAB June 5, 2000)

 What happened? A USPS employee died after sustaining a broken neck in a motor vehicle accident that occurred while he was delivering mail. Before he died, the employee was cited for driving under the influence. 

The agency’s argument. The agency invoked the affirmative defense of intoxication, claiming that it removed the employee from the performance of duty.

The drug testing issue. Upon arrival at the hospital after the accident, the employee’s blood alcohol level was tested at nearly twice the legal intoxication limit in the state where the accident occurred.

How the ECAB ruled. Based on the blood alcohol level and a doctor’s opinion, the ECAB held that the employee’s intoxication removed him from the performance of duty as it was the proximate cause of his injury.

B.B. and Department of Justice, Bureau of Prisons, 2015 WL 5306843, No. 14-2000 (ECAB July 9, 2015) 

What happened? The widow of a Bureau of Prisons correctional officer filed a claim for survivor’s benefits, alleging that the officer was “murdered [by] gunshot” on the job.

The agency’s argument. In response, the agency alleged that the officer died in a hotel as the result of a gunshot wound inflicted by a fellow correctional officer in activities that were not job-related, part of which involved illegal drug use.

The drug testing issue. A toxicology report indicated that the officer had Methlenedioxypyrovalerone – better known as “bath salts” – in his system. The report also indicated the presence of Lidocaine, which is used as a “cutting” agent for drugs of abuse.

How the ECAB ruled. According to the board, “the employee’s ingestion of mind-altering drugs would not be reasonably expected by the employing establishment as a travel-duty activity, and it constituted a deviation from the normal incidents of his employment such that he was removed from the performance of duty.” Thus, the widow was not entitled to survivor’s benefits.

The takeaway

What does it all mean?

Based on statutes, regulations, agency decisions, and guidance, agencies should get the results of drug testing in hand when faced with a claim for workers’ compensation benefits, particularly if something like a doctor’s concern or a coworker’s observation raises the suspicion of possible drug or alcohol use on the job.

However, the legal key to asserting a defense based on an employee’s substance use is that intoxication must be the proximate cause of the injury for OWCP to deny benefits to a worker. Thus, the agency must provide evidence showing that the employee’s illegal drug or alcohol use removed her from the performance of duty.

It can be a tough case because, in certain circumstances, the ECAB might say that even if the employee was intoxicated, the injury would have happened anyway, and so would be compensable. info@FELTG.com

Latest OWCP COVID-19 Guidance Tackles Continuation of Pay

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By Frank Ferreri, March 15, 2022

As with just about everything employment-related, COVID-19 continues to have a shifting impact on the federal workers’ compensation landscape, with the Office of Workers’ Compensation Programs pivoting in its guidance to meet the demands of a workforce entering its third year of pandemic-related challenges.

In its latest recommendations, issued in mid-February, OWCP focused on continuation of pay and how employees must demonstrate that they had COVID-19 to earn COP. The following chart highlights the agency’s latest updates for when employees file COVID-related claims under the Federal Employees Compensation Act.

Topic OWCP guidance
Establishing a COVID-19 claim To show that she has COVID-19 for purposes of receiving COP, the employee:

1.     Must be diagnosed with COVID-19 via a positive test result – excluding home tests – or a medical professional; and

2.     Within 21 days of diagnosis, must have carried out duties that required contact with patients, members of the public, or coworkers.
Continuation of pay COP is payable if a federal employee must miss time from for isolation after a positive COVID-19 test only if:

1.     The employee can demonstrate she has COVID-19 via a positive test result or a medical professional.

2.     The employee files a CA-1 within 30 days of the last exposure to COVID-19 at work.
Days of COP for isolation for COVID-19 Although OWCP pointed out that the latest CDC recommendations indicate that five days of isolation following a positive test is enough, OWCP will not intervene until the 10-day regulatory timeframe of 20 CFR 10.222 has passed.
Filing a FECA claim without demonstrating positive COVID-19 status If an employee files a FECA claim without evidence of a COVID-19 positive test result or a report from a medical professional within 10 days, OWCP will formally adjudicate the claim and make a determination of COP. If it turns out that OWCP denies the claim, the agency can recover any COP previously paid to the employee.
Employees who don’t have COVID-19 but must quarantine due to exposure OWCP cannot accept a workers’ compensation claim based solely on quarantine or exposure, and COP is not payable solely for quarantine or exposure.
Safety concerns Although COP is not available for quarantine or exposure only, OWCP advised employees and agencies to consider possible safety leave, which can include paid leave, for quarantining purposes.

So, what’s the takeaway? When it comes to OWCP’s current stance regarding workers’ compensation and COVID-19, COP will be available – but only if employees have a positive test that’s not a home test or a report from their doctor indicating they are COVID-19-positive. info@FELTG.com

OWCP Covers ARPA Steps, Definitions for COVID-19 Workers’ Comp Claims

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By Frank Ferreri, May 19, 2021

With the American Rescue Plan Act (ARPA) looking to make it easier for Federal employees diagnosed with COVID-19 to file workers’ compensation claims, the Office of Workers’ Compensation Programs has put together updated guidance for processing coronavirus-related claims.

In FECA Bulletin No. 21-09, which supersedes Bulletins No. 20-05 and No. 21-01, OWCP addressed the processing of pre- and post-ARPA claims as well as what counts as “exposure,” why a CA-1 is required, and how employees must establish a COVID-19 diagnosis. The following chart highlights OWCP’s latest guidance:

Workers’ Compensation Considerations OWCP Guidance
Previously accepted cases COVID-19 FECA claims that were accepted prior to March 12 are not impacted because coverage for benefits had already been accepted. Because these aren’t ARPA cases, they are not subject to that law’s limitation that no benefits may be paid after Sept. 30, 2030.
Previously denied cases OWCP’s FECA program will review all COVID-19 claims previously denied to determine if claims can now be accepted under ARPA. If so, the employee and agency will be notified that the case will be reopened.
Previously closed cases No action will be taken on cases that are already administratively closed. Any future actions will be taken in accordance with ARPA since the claim had not been formally accepted.
Form-filing process The Employees’ Compensation and Management Portal should be used to file new claims, and ECOMP has been updated.
Use of the CA-1 OWCP considers COVID-19 to be a traumatic injury per 20 CFR 10.5(ee) because it is contracted during a single workday or shift. The agency also considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the date of injury.
Codes All cases filed after March 11 for COVID-19 will use the following codes:

·       Nature of Injury – COVID-19 (T9).

·       Cause of Injury – Exposure to COVID-19 (9C).

·       Location of Injury – COVID-19 (ZZ).
Employees covered The claims examiner should determine whether the employee is an employee under 5 USC 8101(1) and whether she was diagnosed with COVID-19 between Jan. 27, 2020, and Jan. 27, 2023. If the employee’s diagnosis does not fall within that date range, routine FECA case-handling procedures apply.
COVID-19 diagnosis To establish a COVID-19 diagnosis, an employee or survivor should submit one of the following:

·       A positive polymerase chain reaction COVID-19 test result.

·       A positive antibody or antigen COVID-19 test result together with contemporaneous medical evidence that the employee had documented symptoms of or was treated for COVID-19 by a physician.

·       If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.
Covered exposure An employee is deemed to have had exposure if, during the covered exposure period, she carries out one of the following:

·       Duties that require a physical interaction with at least one other person in the course of employment duties.

·       Duties that otherwise include a risk of exposure to COVID-19.
Covered exposure period The evidence should establish manifestation of COVID-19 symptoms or a positive test result within 21 days of the covered exposure.
Teleworking employees An employee who is exclusively teleworking during a covered exposure period is not considered a “covered employee.” In that case, routine FECA case-handling procedures apply.
Death claims In death cases, the FECA program will ask for evidence and records to support that the death was the result of COVID-19 or that COVID-19 was a contributing cause of death.
CA-16 When an employee uses ECOMP, the agency will be prompted to provide a CA-16 if they do not substantively dispute the employee’s description of cause and nature of injury. Issuing the CA-16 will allow the employee to obtain the necessary test to confirm COVID-19 and receive medical treatment.

 

New ARPA Presumption Expands Federal Workers’ Comp Coverage

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By Frank Ferreri, April 20, 2021

The one constant that has emerged in the COVID-19 era is that things will change, and such has been the case with Federal workers’ compensation coverage.

Early on in the pandemic, the Office of Workers’ Compensation Programs made it easier for certain federal employees to establish that their exposure to coronavirus was work-related without going through traditional requirements on producing evidence.

With the American Rescue Plan Act of 2021 now in effect, Congress has followed OWCP’s lead, and declared that a federal employee who is diagnosed with COVID-19 and carried out duties that required contact with patients, members of the public, or coworkers, or included a risk of exposure to the virus during a covered period of exposure prior to the diagnosis, is deemed to have an injury that is proximately caused by employment.

Under the law, employees who are “exclusively teleworking” don’t enjoy the presumption of coverage, and it’s up to the U.S. Department of Labor to specify what the “covered period of exposure” is.

In the meantime, OWCP has advised in guidance that federal employees should be aware that:

  • Any COVID-19 claim filed under the Federal Employees Compensation Act that was accepted for COVID-19 prior to March 12, 2021, is not impacted because coverage for benefits has already been extended.
  • Any COVID-19 claim filed under FECA that was denied or withdrawn prior to March 12, 2021, is eligible for review under the new eligibility requirements.
  • Any COVID-19 claim filed under FECA on or after March 12, 2021, will be reviewed solely under the new eligibility requirements.

OWCP explained in the guidance that if employees previously filed a COVID-19 claim under FECA that OWCP denied based on a lack of exposure or lack of medical evidence establishing a causal relationship between the job and the infection, they can expect to hear from OWCP by around the end of April.

For employees who have never filed a COVID-19 claim under FECA but believe they have contracted COVID-19 from federal employment, it’s necessary to file a CA-1 through the Employees’ Compensation Operations and Management Portal.

Employees who previously filed a COVID-19 claim under FECA that was accepted can expect no change and need not take further action. Info@feltg.com

Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination

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By Frank Ferreri, January 11, 2021

Notable federal employees — like the National Institute of Health’s Anthony Fauci and Francis Collins – have rolled up their sleeves for the COVID-19 vaccine, signaling the start of another “new normal” sure to define 2021: workplace-required inoculations.

With agencies of all types looking to bring their workforces back together safely, a handle on the Equal Employment Opportunity Commission’s updated COVID-19 guidance will help federal employers stay on the right side of EEO laws when requiring vaccinations.

Here’s a look at how the EEOC views the Americans with Disability Act, Genetic Information Nondiscrimination Act, and Title VII in the vaccine era.

ADA

Under the ADA, which applies to agencies through the Rehabilitation Act, a vaccination itself is not a medical examination. However, pre-screening vaccinations may implicate the ADA’s provision on disability-related inquiries. Such inquiries may only be made if they are “job-related and consistent with business necessity.”

“Job-related and consistent with business necessity” in the vaccine context means that the agency has a reasonable belief, based on objective evidence, that an employee who doesn’t answer the questions and doesn’t receive a vaccination will pose a direct threat to the health or safety of herself or others.”

A “direct threat” is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

Making the case that a pandemic-causing virus is a direct threat to a workplace shouldn’t be too difficult in a time of lockdowns and social distancing.

However, some employees may have disability-related reasons for not receiving a vaccination. Agencies should conduct an individualized assessment to determine whether a direct threat exists, considering four factors: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.

The skinny: If there is a direct threat and no way possible to provide a reasonable accommodation that would eliminate or reduce the risk, agencies may exclude an employee from the workplace. That doesn’t mean they can automatically terminate an employee, though. Instead, given how many agencies pivoted their workforces to remote positions, telework may be an option for those unable to receive a COVID-19 vaccination due to a disability.

The EEOC advises using the interactive process to determine whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.

Title VII

Religion, pandemics, and vaccines don’t always go together, and once an agency has notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the agency must provide a reasonable accommodation unless it would pose an undue hardship.

An “undue hardship” involves more than a de minimis cost or burden on the employer.

The skinny: The best practice is to assume that the employee has a sincerely held religious belief in seeking a vaccination accommodation. However, if an agency has an objective basis for questioning the religious nature or sincerity of the belief, the EEOC notes that agencies can seek additional supporting information.

Similar to the disability context, with so much telework already happening in federal agencies, working remotely may be a natural accommodation for an employee who cannot receive a vaccine due to religious reasons.

GINA

Prior to 2020, “messenger ribonucleic acid” didn’t get much attention outside of labs and biology classrooms, but the “new normal” may soon bring history’s most anticipated mRNA technology to a workplace near you.

The Centers for Disease Control and Prevention reports that COVID-19 vaccines don’t interact with people’s genetic material, so requiring the vaccine, by itself, wouldn’t violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

But here’s the rub: Pre-vaccination medical screening questions may elicit information about employees’ genetic information if they include questions regarding the immune systems of family members.

The skinny: If pre-vaccination screening doesn’t include questions about genetic information, like family medical history, the agency doesn’t have to worry about GINA. If the screening does include such questions, the agency should consider requesting employees to show proof of vaccination from a third party, such as their doctors or pharmacies.

In that case, as a best practice, agencies should warn employees not to provide genetic information as part of the proof using the model language of 29 CFR 1635.8(b)(1)(i). Including this language will protect agencies from GINA charges as the law considers genetic information obtained after providing the warning “inadvertent.”

Pregnancy Discrimination Act

As an amendment to Title VII, the PDA should be on employers’ minds when vaccination requirements work their way into agency policy.

While the EEOC’s latest update didn’t specifically address pregnancy discrimination, the commission previously emphasized that “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”

Under the U.S. Supreme Court’s holding in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), an employee can show pregnancy discrimination by presenting evidence that: 1) she sought an accommodation; 2) the agency didn’t accommodate her; and 3) the agency did accommodate others “similar in their ability or inability to work.”

In the Court’s reasoning, an employee can make her case “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

The skinny: Per EEOC directions, agencies should make sure that supervisors, managers, and HR personnel know how to handle pregnancy-related accommodation requests to avoid disparate treatment in violation of Title VII.

Yet again, the case for telework will likely arise. If nonpregnant employees are offered the accommodation of working remotely, it would logically follow that a pregnant employee could potentially still do the job while teleworking. info@FELTG.com

[Editor’s note: Register now for EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a half-day virtual training event on March 10.]

Workers’ Comp Rules for COVID-19 Depend on Job Type

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By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

info@feltg.com