In North Carolina, many employers require workers to take a drug test following an on-the-job accident. The reason is because a positive drug test for alcohol or certain drugs may give the company grounds on which to deny the workers’ compensation claim.
However, a final rule issued by the Occupational Safety & Health Administration (OSHA) last year holds that employers are forbidden from using drug testing – or the threat of drug testing – as a form of retaliation against workers who report injuries or illnesses. As long as the drug test conforms to state and federal regulatory requirements, the employer’s motives are not considered retaliatory and are therefore allowable.
A recent case before the Kansas Court of Appeals deals with workers’ compensation and drug testing, and whether providing an inadequate testing sample amounts to a refusal on which a denial of benefits can be predicated. Essentially, an insufficient sample, absent any further evidence of intent to thwart the purpose of the drug test, is not a refusal to submit to a drug test under the state’s workers’ compensation act.
According to court records, the plaintiff worked as a grinder at a local factory. He started his daily eight-hour shifts at 4 a.m. One day, just an hour and a half into his day, his left arm was injured. He was reportedly grinding on a piece of a metal, and something struck him. He was examined onsite by an emergency medical technician and then transported to a local emergency room. He was admitted at 6 a.m. for severe pain in his elbow and thereafter underwent a physical examination, an X-ray, and also an MRI. Hospital officials took a blood test from him. The medical records indicate the lab was notified of the need for a drug screen for workers’ compensation. The lab called the employer to find out which kind of a drug screen it needed, and the lab worker was told no drug screen was needed.
The plaintiff was released from the hospital and started walking back to the employer. A nurse employed by the company picked him up a few blocks from the hospital. He told her he wasn’t doing well, he’d been in the hospital all day, and he was sick of questions and just wanted to go home. She told him she still needed a drug test. He was annoyed and asked why this couldn’t have been done at the hospital. Still, he agreed to go. He did not seem to be intoxicated, the nurse said, but the company had a policy of post-accident drug testing.
When the nurse asked whether he had been placed on any work restrictions by the doctor, the worker reportedly tossed the paperwork at her and asked when they were going to do the drug test. He was reportedly near tears and said he was ready to go home. Still, he was cooperative and wanted to do the test. A witness was called. The plaintiff was told he needed to fill the cup to a certain point. The plaintiff cooperated but reportedly could not fill the cup up to the line, and there was not enough to get a temperature reading.
The nurse informed him he’d need to have another test taken. But he grabbed his hard hat, said he would “see you ladies later,” and walked out, even as the nurse called after him that he might lose his job if he didn’t finish the drug test. This didn’t stop him. The nurse then went back in and immediately threw away the urine sample. She stated it wasn’t unusual for a cup to be defective, but she had to get the plaintiff’s permission to transfer the sample into a different cup.
None of the plaintiff’s doctors stated that there was any indication the plaintiff was under the influence of drugs or alcohol, nor did any of his supervisors or co-workers. All of the plaintiff’s medical appointments relating to the accident were canceled for the refusal to take the drug test.
When the plaintiff appealed his employer’s stance, both the administrative law judge and the board of commissioners ruled he forfeited his benefits under the workers’ compensation act by refusing to provide an adequate urine sample.
However, the Kansas Court of Appeals made it clear it was not bound by this interpretation, and it disagreed and reversed. The court noted there was “not one bit of evidence” on the record that would indicate the plaintiff was drunk or on drugs when he was injured at work. When the hospital asked him to give a urine sample, he agreed to do so. It was only when the employer told the hospital that one wasn’t needed that it was not administered. Furthermore, the plaintiff gave a urine sample when he got back to the job site. The nurse threw that sample out because she believed it to be inadequate. There is no evidence she even attempted to test it.
From the worker’s standpoint, this had been a long day. He was still in pain. Nothing in his statements or actions, the court ruled, amounted to a refusal to take the test or an admission of wrongdoing.
The court reversed and remanded.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Byers v. Acme Foundry, Jan. 27, 2017, Kansas Supreme Court
More Blog Entries:
Report: Construction Workers at High Risk of Sprains and Strains, Jan. 27, 2017, Charlotte Workers’ Compensation Lawyer Blog