Edited by Jim Ellenberger

As the new year begins, we report on how profit-driven insurance companies and employers use drug testing and other punitive policies to wrongfully deny and deter workers’ compensation claims. We also share news on ill workers struggling to get compensation and raise awareness of toxic exposure, legislative updates from Kentucky and Pennsylvania, and two proposed federal bills that would extend essential labor rights to domestic workers and would allow workers to sue their employers for harassment, discrimination, wage theft, and other illegal treatment rather than being forced into private arbitration.

– Jim Ellenberger

Shifting Blame: How Punitive Policies Target Low-Wage Workers, Create Barriers to Workers’ Comp, and Fuel the Addiction Crisis

Working as a carpenter in Louisiana, Joshua Prine suffered an acute back injury. He reported the injury and his supervisor took him to a clinic — not for medical treatment, but to make him pee in a cup. When Prine insisted on seeing a doctor before taking a drug test, his supervisor fired him on the spot. He was left to find his own way to another clinic, where he passed a drug screening after receiving emergency medical care.

Joshua Prine’s case illustrates how some employers and insurance companies are using drug testing in workers’ comp cases as a retaliatory and punitive measure to deter workers from filing for workers’ comp and discredit their claims rather than as a genuine response to workplace safety concerns.

Drug tests are but one of a number of invasive practices that profit-driven employers and insurance companies are using to boost their bottom lines by shifting blame onto individual workers. Other practices include using “safety reward” programs to create peer pressure against reporting injuries, requiring workers to see company-paid doctors who are more concerned with denying claims than delivery treatment, and hiring private investigators to surveil workers’ private lives. All the while, industry lobbyists are working with state legislators to rewrite laws to make these practices even easier.

For injured workers, drug testing has a double impact. First it acts as a standing threat, deterring workers from filing an injury report in the first place, for fear of retaliation from their employer whether or not their claim goes through. Secondly, it opens a door for employers to sow doubt about an injured worker’s claim. Insurance companies use refused or positive drug tests to justify denying or reducing workers’ benefits, knowing that adding another obstacle to an already labyrinthine process will dissuade many workers from pursuing their claims. 

Moreover, drug tests shift the burden of proof onto workers to show their ‘innocence’ in order to claim a benefit that is supposed to be guaranteed. This flies blatantly in the face of the no-blame assumption that is foundational to workers’ comp. While employers unquestioningly accept the shield this affords them from the unpredictability and potentially higher liability of civil lawsuits, they shirk their side of the bargain when they force workers to prove that their own actions did not contribute to the injury.

In 2016, the Occupational Safety and Health Administration (OSHA) passed a record-keeping rule that placed restrictions on post-injury drug-testing, acknowledging its invasive nature and fundamentally retaliatory function. However, under direction by the Trump administration, in October OSHA released new interpretive guidelines that backtrack on key elements of the rule — including a statement that post-accident drug testing would not be considered retaliatory if employers “test all employees whose conduct could have contributed to the incident, not just [those] who reported injuries.” Moreover, under the Occupational Safety and Health Act, OSHA rules cannot affect state workers’ comp laws, so where post-injury drug testing is explicitly allowed in state law, employers cannot be held accountable for using it as a mechanism of retaliation or intimidation.

Insurers continue to exploit such loopholes, as a recent case in Colorado makes devastatingly clear. Adam Lee was a lift attendant at Loveland Ski Resort, where he was killed last winter when he was caught in the ‘Magic Carpet’ ski escalator.  Months later, the resort’s insurance company told Lee’s widow and two children that they would be denied half of his workers’ comp death benefits because a posthumous toxicology test showed THC in his body. Though marijuana is legal in Colorado and there is no scientifically valid method to determine whether Lee was actually intoxicated when he died, it remains legal for the insurance company to deny Lee’s family death benefits because of the drug test results.

In other cases, insurance companies use invasive practices of surveillance and harassment in order to dig up personal details after the fact to discredit a claimant. In this context, an individual’s alcohol and tobacco use are often held up as evidence of an unhealthy lifestyle, introducing doubt about the cause of an occupational injury or illness. No matter how groundless these charges are, they force injured and ill workers to play defense, undertaking time-consuming appeals and scrambling to ‘prove’ details of their personal lives.

Stigmatizing and blaming individuals for structural problems like safety hazards and addiction is nothing new, nor is it limited to workers’ comp. The blame levied on injured workers stems from a long history of punitive practices and policies targeting poor and working people—especially Black people, indigenous people, and immigrants—that stretches from 17th century English and colonial American poor laws through Reagan’s War on Drugs and on fabled “welfare queens,” Clinton’s elimination of welfare rights, mass incarceration, deportation, and the ongoing assaults on Medicaid, public housing, and SNAP (food stamps).

Punitive policies are driven in no small part by companies’ desire to boost their profits by cutting payments to workers, insurance rates, and taxes. At the same time, they also serve the larger political project of cleaving our citizenry into two imaginary groups, the deserving and the undeserving.

Stigmatizing individual workers as irresponsible and thus undeserving serves corporations’ larger political project of undercutting workers’ power, blocking regulation of private industries, and preventing downward redistribution. At the same time, punitive practices shift blame onto workers by playing off, and reinforcing, cultural biases that treat alcoholism, pain killer dependency, and other addictions as sources of individual shame and blame rather than public health issues demanding a collective, caring response. Rather than combat the addiction crisis, as ‘tough on drugs‘ advocates claim to do, this instead exacerbates the problem, feeding into the cycle of addiction by creating barriers to treatment, employment, affordable housing, and medical care. 

It is clear that we need more humane and effective public health approaches to help people heal from addiction. Two states are leading the way in developing such programs by integrating preventive measures, medical treatment, access to sdiv housing and income, and a path to dignified work with a livable wage. Vermont has introduced a promising ‘hub and spoke’ model that connects people to addiction treatment, therapy, social services, and other resources. As we highlighted in our last newsletter, Washington has also implemented a public health model that approaches the problem of opioid addiction through collaboration across state agencies and different areas of drug enforcement, health, and workers’ comp policy. 

Key to both states’ strategies is treatment rather than criminalization and an emphasis on integrating healthcare with other social supports, an approach that recognizes that addiction cuts across all areas of people’s personal, social, and economic lives.

Workers arguably have at least as big a stake in maintaining safe workplaces as employers. An honest and effective workplace-safety approach to addiction and substance abuse would fully involve workers, unions, occupational safety, and public health experts in developing and implementing solutions in connection with broader public health efforts to help communities manage and treat addiction.