Thursday, July 6, 2017

An Anonymous Letter in November

I received a copy of an anonymous letter last November. It was addressed to Governor Rick Scott. The writer expressed concerns and questions about Florida's drug-free workplaces. As it was anonymous, it is very hard to provide a response to the writer, but perhaps that is a strength of blogs? If that letter writer does not run across this posting, perhaps it will be of assistance to others. 

One primary point worthy of noting is that this letter writer appears to have personal knowledge of an injured worker. Despite this knowledge, questions are asked in an anonymous format, and late in the claims process. While the writer laments the outcome that she/he perceived, nothing substantive was apparently done by the writer to express her/his concerns in a more timely manner. Some may interpret the writing as driven by perceptions of an eventual settlement more than by safety concerns for the employee or coworkers. 

The writer asks are "State offices not drug-free work places?" And, "why would the State's definition be any different than that of a private company with the same policies in place?"

Section 440.09(3), Fla. Stat., provides some guidance:
Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician.
There are also provisions in Section 440.102, Fla. Stat. that might be of interest. It provides for an employer to establish a "drug-free workplace program." In the event such a program is implemented, there are definitions (1), drug testing (2) and (4), requirements (3), (5), (6), and (8), benefits for the employer (7), standards (9), and rules (10). It is a long statutory section, with a great deal of information.

The November writer asserts that "in private business, when an employee is injured on the job, they are drug tested before given Workers' Comp." The writer concludes that "the employer has the right to fire any employee who comes to work impaired on alcohol or drugs." And, questions "why then is this practice not a policy with the State?" These are fair questions. I know of no reason that an employer would be prevented from testing, within the parameters of the law. And, that would include the State of Florida as an employer. But, that decision would appear, state or private, to be up to the employer, and dependent upon the employer's perceptions and knowledge. 

Then details emerge from the November writer's anonymous letter. The writer alleges that there is a current claim involving a state employee. Allegedly, in "7 or 8 years of working for the State," this employee has suffered 7 or 8 work accidents "most based on their own clumsiness." The writer complains that "never once was this claimant tested by the State for drugs." The writer complains that this person would certainly test positively, "had the State done their job." The result, is that "taxpayers have footed tremendous medical bills for this person and now stand to pay them a substantial settlement for their impairment-related accidents." 

The writer says that this particular recovering worker has since left State employment, but continues to suffer accidents as a result of being "always stoned." Allegedly, this employee came to the State after prior work injuries, positive drug tests, and termination from other employment. The description evokes conclusion of a very persistent history of work accidents. The writer questions "why have a policy in place and not enforce it when it affects a worker's stability and ability to do their job and remain safe while in the employ of the State?"

Because the case described by the writer was then "awaiting settlement/trial," the writer concluded it "would be pointless" to perform drug testing now, "as it would prove nothing about their condition/impairment at the time of their injury." And, they allege that this is "the state's fault," as it "did not do its job." Whose job is it to protect workers? Certainly some measure of responsibility is the employer's. But, does some responsibility fall on others? Do co-workers and the public share any responsibility when they see and perceive risks?

What is the harm of working while impaired by drugs or alcohol? The fact is that either can change perceptions, reactions, and performance. Either can put a worker at risk of injury to him/herself or others. Impaired workers, like impaired drivers (and an employee might simultaneously be both) can pose a risk to themselves, coworkers, and the public. As I read the anonymous letter, I had to wonder where was this letter writer as 7 or 8 work accidents occurred? Why was the employer not contacted much earlier in such a progression, perhaps after the first accident?

Recently, the Montana Standard reported on a workers' compensation fraud conviction there. An employee reported a work injury, but later admitted that he was hurt on his own time one Saturday while motorcycling. After the accident was reported, a tip to the fraud hotline led to questions asked, a witness found, and ultimately a guilty plea. The Montana Attorney General summed up citizen participation in the case:
This case is a good example of how vigilant and honest Montana citizens can alert authorities to bogus claims and help conserve work comp monies for injured workers who truly need assistance with medical expenses and lost wages.
The Florida letter writer appears frustrated because she/he perceives an employer, the State, is under-performing as regards at least one employee. But, it is impossible to know much in this setting of anonymous complaint. It is possible that the complained of worker has in fact undergone testing for impairment, and passed. It is possible that the employer has observed no signs or signals that would cause suspicion or justify testing for drugs. It is possible that the letter writer might have engaged 7 or 8 years ago and reported a possible safety issue to that employer, before anyone was hurt. 

One of the problems with workers' compensation, which it has in common with much else in life, may be the ease with which a Monday morning quarterback can question and criticize. It may be easy in retrospect to recognize issues, such as an impaired employee, a missing safety device or guard on a machine, an employer characterizing employees as independent contractors, and more. Afterward, there may be inclination to criticize and fault. But, if such information is known and thereby Floridians are at risk, then would it make sense to say something before 7 or 8 injuries?

Certainly, there is reluctance to being the squeaky wheel. There is reluctance of outsiders to "getting involved." But if people's safety is at risk, don't we all owe it each other to say something? To say something before 7 or 8 injuries? It is easy to criticize in retrospect, and much more difficult to become involved prospectively. But if an accident could be prevented, potentially a life saved, is that not the better approach? The Florida Department of Financial Services has a website with information on reporting concerns, including a webform and phone numbers with which to contact them

The life you save, the injury you prevent, are worth your time and trouble.

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