Q: Where do I start in researching and advising an employer client about drug testing employees in the case of an accident?

Response 1: I recommend you don’t. Let the carrier provide this information.

Response 2: Here’s the OSHA rule.

Response 3: Try your local police department.

Response 4: You can ask your workers comp carrier or, better yet, advise your insured to discuss this matter with their employment lawyer.

Response 5: Give the employer the phone number for your state’s labor department. There is an errors & omissions danger in being overly helpful to clients.

Response 6: Relevant laws can change rapidly on both a state and federal level. You need to leave this to the carrier—together, the carrier and employer should determine when to drug test.

If the insured wants information beforehand, they need to contact an employment attorney. As an insurance agent, you are not qualified to advise them on this matter.

Response 7: Researching this subject is not a bad idea; advising your client on it is a really bad idea.

You should leave this to professionals who are trained and experienced in this arena. Sometimes that means a lawyer, sometimes that means a human resources department, sometimes both. You can also seek help from the loss control department of the carrier, if they have one.

There are several options available, but you should not be giving advice on the subject. What if you’re wrong and a lawsuit develops? Your E&O exposure is significant, not to mention the potential for an allegation of the unauthorized practice of law.

Response 8: You should not advise clients on employee drug testing, which is a legal issue under state and federal employment laws. Laws differ by public versus private sector and, in some instances, by type of industry or job category.

If you Google “state and federal drug testing,” you will find many links to articles on this topic. But it is your client’s labor lawyer’s job to advise the client—not yours. 

Your agency could retain employment counsel to prepare a letter that discusses pre-employment testing, post-employment testing and post-accident testing in generic terms, with the caveat that each employer should seek advice from its own counsel.

Then, you could provide that letter and its disclaimers to clients as baseline information intended to encourage them to further consult with their own counsel—or to retain the counsel that drafted the generic document to respond to their specific questions.

This question was originally submitted by an agent through the VU’s Ask an Expert Service, with responses curated from multiple VU faculty members. Answers to other coverage questions are available on the VU website. If you need help accessing the website, request login information.