Let’s start off by stating if you do not have a written drug testing (or alcohol) policy in place you should get one. The times are changing.
Many companies require employees to submit to drug tests after suffering a workplace injury. The rationale is simple – intoxication (drugs or alcohol) is one of the few complete defenses an employer has to a workers’ comp claim for a workplace injury.
What happens, though, if the injured employee refuses to take the drug test? That scenario has presented itself many times. In one case, the employee left work complaining of a non-work-related backache. He told the ER nurse, however, that his pain was caused by an aerial harness he had to wear at work. Upon hearing the injury was work-related, the nurse asked the employee to submit to a drug test, which he did.
The employee returned to work the following week with light duty restrictions. The HR department then informed him that he needed to submit for drug testing. The employee complained that he had already taken a test the prior week. The employer, however, required a re-test because the earlier test did not comply with its policy for the employee to be transported to the testing facility. The employee had gone on his own, without the employer even knowing he had suffered a workplace injury.
Because of the employee’s protests about the re-test, and his “nervous and fidgety” reaction, the assistant manager required that the re-test be monitored. Upon learning that the drug test would be observed, the employee refused to be tested. The employer subsequently terminated him for refusing to submit to a drug test in contravention of company policy.
Of course you know what happened, the employee sued, claiming that the employer terminated him in retaliation for his workers’ comp claim. The Superior Court and the Court of Appeals for the jurisdiction both dismissed the former employee’s claim.
The courts determined the assistant manger had made that determination after noticing Ferguson’s “nervous and fidgety” reaction to being asked to resubmit to a drug test. The manager’s decision, the court determined, was not punitive action against the employee because he had filed a workers’ compensation claim. Instead, it was a management decision predicated on a reasonable suspicion that the employee was using drugs or alcohol in the workplace.
In short, it was the employee’s own refusal to submit to the test that motivated his discharge. That refusal, under the written policy, was likewise sufficient to result in the employee’s discharge.
Drug testing policies are complicated and very easy to get wrong. Make sure you have an experienced professional write your policy if you do not have one. Keep in mind that the policy should state that you have a right to test if there is a reasonable suspicion or in the case of a work related accident and any refusal to do so will result in termination.
Note: For our California clients do not take any action without calling us first!