March 8, 2007 The Pump Handle 1Comment

by Les Boden

For the past several years, Nevada employers and insurers could avoid paying workers’ compensation benefits to workers who had positive drug tests. According to an article in Occupational Hazards, this led to the denial of 10%-12% of claims filed in Nevada. But there’s a loophole that the Nevada legislature is considering closing. Workers have the right to refuse drug testing. The Insurance Journal reports that proposed legislation would require all injured workers to submit to drug tests if they apply for workers’ compensation.

What a good idea!

No matter that Ken Rosenman and his colleagues estimate that only 2/3 of injured workers file claims in the first place, and that Joyce Fan and her colleagues suggest that this number may be closer to half . Now there’s another way to reduce that proportion even more: force injured workers to submit to a drug test. If there’s a positive drug test, the worker doesn’t get compensation and, maybe as a bonus, loses his/her job. Somebody who may have had a puff or two of cannabis over the weekend is out of luck. Somebody else who was at a party where others smoked cannabis may not file a claim for fear of failing a drug test.

Why didn’t I think of that?

No matter that a similar law was declared unconstitutional by the Ohio Supreme Court in 2002. That court decided that warrantless drug testing was an unreasonable search and thus violated the Ohio Constitution. But that’s the left-wing Ohio Supreme Court.  Perhaps the Nevada courts will do a better job of balancing the rights of employers to avoid paying benefits to injured workers against the rights of workers to be protected from government-mandated intrusion into their private lives.

Les Boden, PhD, is Professor and Associate Chair of the Department of Environmental Health, Boston University School of Public Health. Dr. Boden is a member of the National Academy of Social Insurance and has been an active member of Federal advisory committees for both the Centers for Disease Control and the Department of Energy.

One thought on “Will Nevada Deprive Injured Workers of their Fourth Amendment Rights?

  1. I also note that one of the insurance company schmucks pushing this legislation claims that Builders Insurance Company processed 4000 claims. In 125 of them, workers refused to take a post-accident drug test. That is, just over three percent of the fifty percent who claim may have refused. This is reason to change the law?

    On a related note, Maryland representative (and contracting company owner but I’m sure that’s neither here nor there, right?) LeRoy Meyers wants workers breath-tested. Never mind that there are currently provisions allowing the testing of blood, urine, hair and saliva. Or that breathalysers are tricky bastards to operate–Cops lose drink-driving cases all the time by misusing or failing to properly document the tests. But it’s good enough for the American worker, eh?

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