A publication recently reported disturbing numbers for "unintentional overdoses from nonmedical use of drugs."

Judge David Langham

There is a large volume of such deaths in America generally, more on that recently in The Time has Come, the Time is Now (April 2021).

Overdose death is not indigenous or isolated to the workplace by any means, but overdose is occurring in the American workplace. That may be related to increased availability and the incredible danger of fentanyl (see Fentanyl Is Killing — Still (November 2021).

Notably, the government has concluded that only about 40% of overdose death involves prescription medication. It is certainly possible to misuse or mistake prescription drugs. There are many who rush to assure that marijuana is a drug that does not implicate such risks, but that is refuted by the American Addiction Centers. It contends that hundreds die each year from drug use that may involve a variety of combinations and circumstances, but which are characterized by the government as implicating pot.

Certainly, the volume of Americans dying of overdose is sobering and serious. The volume has been of concern for years, and it is rising. But, it is notable that "unintentional overdoses ... accounted for 388 workplace deaths in 2020." Following the national trend in overdose death generally, "the number of fatal workplace overdoses increased in each of the last eight years."

In short, there are too many, and the volume is increasing.

It may seem to some that 388 is a relatively low number among the millions of people out there in the workplace daily (Statista says it is about 160 million). But, the story notes that these are included in the "broader event category," which is labeled "exposure to harmful substances."

Notably, the overdose deaths in the workplace represent a staggering 57.7% of the deaths in that exposure category. Overall, workplace fatalities are recently decreasing, which is a positive tribute to safer workplaces, modern medicine and likely workers' compensation. But, not overdose. Overdose in the workplace is increasing, just as it is in our society.

Intertwined with this interesting upward trend is a disinclination of employers to perform drug testing. The tight labor market, according to the marijuana advocates, is driving employers to abandon any concerns of drug use in the hiring process. Norml — the National Organization for the Reform of Marijuana Laws — reported results of a large survey concluding that "9% of respondents acknowledged that they had 'eliminated job screenings or drug tests' as a way to either attract or keep their employees." Economic pressures are thus purportedly changing behavior in the hiring process and making the workplace more accessible to those who use recreational drugs.

That means only that a worker may be hired despite ongoing drug use and even habit(s). That does not mean that an employee may not find her/his workers' compensation claim denied following a post-injury drug test. The same economic demands and foci that might lead a company to eschew preemployment testing might nonetheless similarly lead it to post-accident testing and an effort to avoid the expense that accompanies accident, injury and disability. Stated simply, the pot debate is complicated.

One legislator is seeking to impose a statutory drug use deterrent. A bill introduced in the Virginia Assembly for 2022 would mandate post-accident drug testing, according to WorkCompCentral. The testing would be specifically for "non-prescribed controlled substances." While it is possible to get a prescription for products that include fentanyl, it is also a street drug. Similarly, while it is possible to get a "recommendation" for pot, it is not prescribed and is certainly a controlled substance.

This all illustrates again some disconnect in American society. There are populations that engage in the use of recreational drugs. The labor market seems willing to accept them and to ignore the potential drug use in which each might potentially engage. There can be debate regarding the extent to which a particular worker's use equates to either impairment or a threat to the safety of that worker or those surrounding him. These are undoubtedly difficult questions.

There is also the unsettling fact that drug overdoses are increasing in this country. Unfortunately, that data now demonstrates that the increase is also being perceived in the sub-category of workplace death. It seems beyond question that drugs can be dangerous and even deadly, that drug death is too prevalent and that the upward trends are undoubtedly bad news. What is left is the question of what workers, employers, regulators and legislators can do to acknowledge and reverse the trends.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.