Question: I have an employee who fell without a witness. We sent him right to occupational health for treatment. Our policy is any accident you automatically get a drug test. We have a company-wide random drug test policy and pre-employment test which he passed. He refused the test because he felt sick. He finally took the test seven days later and it came back positive. We cannot fire him because he will just stay on workers comp forever. Workers comp says they can’t do anything because the drug test was seven days later than the accident. Do we have any rights and can you steer us in the right direction?
Answer: Actually, an employer can terminate an employee who has been hurt on the job, so long as the reason for termination isn't because the employee filed a workers’ comp claim. If an employee is unable to work, an employer is not required to keep him employed. The employee, or ex-employee, will continue to receive workers comp benefits, if he is otherwise qualified, regardless of whether he remains employed. I'd certainly recommend terminating this employee since he failed the drug test, even a week after the incident. By the way, it's curious that the employee was able to evade taking the drug test initially because he felt sick; the drug testing facility should be queried as to why it let him get away like that. Even though workers’ comp may be reluctant to end his benefits because of when the test did occur (and who ever heard of a workers’ comp carrier aggressively advocating for the employer!), they may be able to do something about the fact that the employee hasn't availed himself of the opportunity to return to work. Then too, the employer should consider whether they want him back, knowing he has a history of drug use.
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at firstname.lastname@example.org.
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