Wednesday, August 19, 2009

Refusal to take drug test bar workers’ comp retaliation claim

Many companies require employees to submit to drug tests after suffering a workplace injury. The rationale is simple – intoxication 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 presented itself to SanMar Corporation in late-2006. Thomas Ferguson 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 Ferguson to submit to a drug test, which he did.

Ferguson returned to work the following week with light duty restrictions. SanMar’s HR department that he needed to submit for drug testing. Ferguson complained that he had already taken a test the prior week. SanMar, 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. Ferguson went on his own, without SanMar even knowing he had suffered a workplace injury.

Because of Ferguson’s protests about the re-test, and his “nervous and fidgety” reaction, SanMar’s Assistant Manager required that the re-test be monitored. Upon learning that the drug test would be observed, Ferguson refused to be tested. SanMar subsequently terminated him for refusing to submit to a drug test in contravention of company policy.

Ferguson sued, claiming that SanMar terminated him in retaliation for his workers’ comp claim. In Ferguson v. SanMar (8/17/09), the Butler County (Ohio) Court of Appeals affirmed the trial court’s dismissal of Ferguson’s claim:

Kirk, as assistant facility manager, made that determination after noticing Ferguson’s “nervous and fidgety” reaction to being asked to resubmit to a drug test. Kirk’s decision was not punitive action against Ferguson because Ferguson filed a workers’ compensation claim. Instead, it was a management decision predicated on a suspicion that Ferguson was using drugs or alcohol in the workplace.

For Ferguson’s argument to succeed, the evidence would have to show that SanMar knew that requiring him to be transported to the hospital and observed while he submitted to the test would induce Ferguson’s refusal to be tested. There is no way that SanMar, or anyone for that matter, could have known that Ferguson would refuse to be tested…. It was Ferguson’s own refusal to submit to the test that motivated his discharge. That refusal, under the written policy, was likewise sufficient to result in Ferguson’s discharge.

Drug testing policies are complicated and very easy to get wrong. Indeed, while Ohio does not have a specific statute that governs such policies, other states do (Oklahoma comes to mind). If you are considering implementing a drug testing program for your workforce, experienced counsel should vet it before you put it into circulation. If you already have a policy in place, it should be reviewed periodically for compliance.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or