Pubdate: Thu, 18 Aug 2005
Source: Arizona Republic (AZ)
Copyright: 2005 The Arizona Republic
Contact:  http://www.arizonarepublic.com/
Details: http://www.mapinc.org/media/24
Author: Yvette Armendariz
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

EMPLOYERS DECRY DRUG-INJURY RULING

Some Arizona businesses worry that they will pay higher insurance
premiums and that employees will ignore drug and alcohol policies as a
result of a workers' compensation ruling by the state Supreme Court.

The court last week ruled unconstitutional a state law that makes
drug-or alcohol-impaired workers ineligible for injury benefits when
their employer has a drug-free workplace.

"When people realize they're not in jeopardy of losing (workers'
compensation) protection, that only gives them a boost to say 'what
the heck' (about drugs). That part is frustrating," said Ray Gonzales
Sr., president of RBG Construction in Glendale, who has a drug-free
workplace policy and strives for workplace safety.
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The state law, in place five years, requires employees asking for
workers' compensation benefits to first prove drugs or alcohol were
not a contributing cause of an accident. Insurance carriers also
created incentives for employers to develop drug-free workplaces by
providing a 5 percent discount in premiums.

That discount, potentially worth millions, is possibly at risk of
being lost.

Employers, however, don't lose the right to test employees for drug
use or to fire employees who are on drugs, the court said. But if an
injury occurs and drugs or alcohol are involved, employers will need
to pay injury benefits.

"It just seems to be the wrong message," said Tom Fraker, executive
director of the Arizona Small Business Association.

A huge concern is what the ruling could mean to drug-free efforts by
businesses in a state that has higher-than-average cocaine and
methamphetamine use. Eight percent of Arizona workers are drug users,
compared with 5 percent nationally, said Susan Jones, president and
chief executive officer of non-profit Drugs Don't Work in Arizona!

"For a group of employees, this will be a signal that it will be OK to
continue to use drugs," Jones said. "The boss tried to say no to
drugs, but it's really OK."

The state Supreme Court took on the workers' compensation issue to
resolve two conflicting cases: Grammatico vs. the Industrial
Commission and Komalestewa vs. the Industrial Commission.

In both cases, workers were found to be under the influence of drugs
or alcohol. In Grammatico, claims were paid after the Court of Appeals
found that denying the claim was unconstitutional. In Komalestewa, the
claims were denied.

The Supreme Court unanimously concluded that the Constitution creates
no-fault injury unless an employee rejects workers' compensation
before an accident. A state law requiring proof that alcohol or
illegal drugs didn't contribute to the accident creates fault in a
no-fault state, the court said.

Referendum possible The National Federation of Independent Business in
Arizona, the Arizona Chamber of Commerce and Industry and others have
said they will push the Legislature for a referendum on the November
2006 ballot. They want voters to approve a constitutional amendment
that would restore the drug law.

"We're going to look at this as an opportunity to create a better,
drug-free workplace," said Farrell Quinlan, spokesman for the Arizona
chamber.

But labor groups, who also do not advocate drugs at work, worry that
the referendum could be too broad and cover allergy and pain
medications.

"We would have to see what the referendum would be aimed at doing,"
said Andy Marshall, principal officer with the Teamsters Union Local
104.

A change to workers' compensation rules also opens the door for labor
groups to push for higher benefits, which businesses say could
increase insurance premiums.

"As a standing rule, we want to increase workers' comp benefits.
They're very low here," Marshall said.

Compensation benefits, which are available if an employee is out more
than eight days, are based on 66 2/3 percent of the injured worker's
average salary and capped at $2,400 a month. The limit has been in
place since August 1999.

A drug-free workplace Meanwhile, Ron Busby, president of
Scottsdale-based American Janitorial Services and chairman of the
Greater Phoenix Black Chamber of Commerce, said the ruling is a blow
to small businesses that have drug policies or are considering them.

"It's a catch-22," said Busby, who employs 95 people. "As a small
business, it's almost cost-prohibitive to have a drug-free work
environment. . . . But if I have one, I don't have the state to even
back me up when an employee is on drugs. I lose at both ends."

Jones of Drugs Don't Work in Arizona! expects similar frustration from
business owners.

"But on reflection, they'll see more than ever we all need drug-free
workplace programs," she said. "It's the drug-free workplace program
that has the power to prevent an injury in the first place."

Fraker expects more small businesses will turn to screening employees
before they are hired.

The focus will add more costs to doing business, but how much is
difficult to say.

Typically, a drug screen costs $50.

For now, SCF of Arizona, which writes 65 percent of the state's
workers' compensation policies, offers the 5 percent reduction for
qualifying drug-free programs. Since 2001, the discount has saved
about 5,000 of its 56,000 policyholders about $5 million. SCF also
saved about $3.2 million in denied claims.

SCF is awaiting word from the National Council on Compensation
Insurance on whether the discount can still be offered, said Don
Smith, SCF's president and chief executive officer.

He downplays fears that rates will soar.

"Rates going up is a real stretch," he said, because rates are based
on long-term payout and injury trends and because the state
Constitution may be changed.

Cost to business goes beyond injury claims and premiums. Productivity,
health claims and absenteeism also are affected, Jones said. Citing
statistics from the U.S. Department of Health and Human Services,
Jones points out that a drug user is 3.6 times as likely to be in an
accident and 2.5 times as likely to be absent. Drug users also use
health benefits three times as much as non-drug users.
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MAP posted-by: Larry Seguin