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  1. #1
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    Default Post Injury Drug Testing

    should or can an employer fire an employee for testing positive for thc during a post injury drug test while in the doctors care and on workmans comp restricted duty?

  2. #2
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    Default Re: Post Injury Drug Testing

    There's probably no one simple answer for the question as presented. If the sole reason for termination is a postive drug test then iy would seem right that the results be confirmed and that the employee wasn't targeted for testing in a discriminatory manner.

    Was test taken immediately following an injury at work?

  3. #3
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    Mar 2008
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    Default Re: Post Injury Drug Testing

    As far as I know the testing was performed within two hours of the accident.
    The employee (a friend) thinks he probably should have tested positive but the accident happened a month ago and nothing has come of it. If he was tested positive what in the world could be keeping the employer from just terminating him? He keeps bugging me with this. Is there a Texas law prohibiting the employer from terminating him while in the doctors care, which he is?

  4. #4
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    Default Re: Post Injury Drug Testing

    I don't know Texas law. I would think that the results were inconclusive or that the findings do not support an employment action.
    What I would expect is that the employer, if they were considering an action, would ask the test to be repeated to verify the results and eliminate the possibility of a false positive result.
    You friend might consider taking a break from any behavior that might cause a positive result. Depending on amount and length of usage it can take 30-90 days for thc to completely disappear from the body. If there is an employment action, your friend could request a second test. If the second test is clear, the problem may go away.

    Lots of info available online to research the subject, but none of the miracle products you'll find advertised are worth anyone's money.
    .

    The employer could dispute responsibility for the injury if illegal drug use could be proven, so if they are paying for treatment it's a good sign. A wise person would quit using at least until resolution of injury claim.
    Last edited by lost in connecticut; 03-16-2008 at 03:34 PM.

  5. #5
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    Default Re: Post Injury Drug Testing

    It might also depend upon the type of work the IW is supposed to be doing. DOT standards for drivers of commercial vehicles are far higher than for many other types of work.


    IF this is in connection with a DOT drug screen then any repeat testing is done from the same sample that should have been split when obtained. The second test will be run on the other part of the split sample and a positive result is a positive result is a positive result.


    Even if it is NOT a DOT related drug screen it might be dependent upon the company's drug policy at the time. Post accident drug testing is commonplace in most all industries in this day and age. A positive drug test result could easily be used to deny WC benefits. IF it is proven that in the absence of the illegal drug that the accident most likely would not have occurred.

    The only chance this friend of yours stands in keeping an approved WC claim, provided s/he did indeed test positive for THC, is IF s/he had a good enough attorney to help her/him establish that the same accident was likely to occur in the absence of the illegal substance in her/his body.

    A work related injury does not negate the fact that your friend has been using an illegal substance. In fact it would only serve to magnify the issue. S/he is considered an employee of the company the results may be allowed to stand and any established procedures followed. UP to and including termination for use of an illegal substance.

    Like LIC I am NOT familiar with TX law so that would be a good question for him/her to address with his/her attorney.


    Steel
    Last edited by SteelMagnolia; 03-17-2008 at 02:55 AM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  6. #6
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    Default Re: Post Injury Drug Testing

    Steel,
    It is my understanding that depending on the type of test being used, that false positive results can occur without any use of illegal substances. I'd have to research, but I thought there was proof of false postive tests from over the counter cough medicines and such.
    Addtionally. the protocol for handling samples (much like a chain of evidence) must be strictly followed before using the results to a persons detriment because of the possibility of mixing up and/or cross contaminating samples.

  7. #7
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    Default Re: Post Injury Drug Testing

    Benefits through Worker's Comp have been repeatedly found to be "property" by the courts.
    Before being deprived of property you have a constitutional right to due process (a hearing and chance to examine the evidence against you).

  8. #8
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    Default Re: Post Injury Drug Testing

    LIC, a reliable/legally unchallengeable drug screen would include;

    1-Obtaining a sample through a licensed medical facility.
    2-Observation of seals being broken on and applied to the sterile containers by the donor.
    3-The donor leaving any and all parcels, container, etc., in an area other than the collection site. All pockets emptied etc. (Believe it or not some facilities even do a pat down similar to what the police do upon arrest to assure that nothing is place in the clothing or footwear of the donor. You might be surprised to know how many have "tried" to beat the test by placing a clean specimen, urine from someone else that hasn't been doing illegal drugs, in a baggy placed down the front of their britches. Or some other type of container placed in a sock etc...)
    4-A chain of custody that is reliable to uphold the standard for a legitimately obtained specimen for a drug screen.

    Most drug screens that meet this criteria are done with a split sample, meaning the original fluid sample is placed into two different sterile containers at the time of donation and in the donors presence.

    Both containers are sealed and initialed by the donor and who ever administers the screen.

    When there is a question as to the results the second of the sealed samples are tested. (The donor should never be asked to provide an additional sample.) Sometimes the second sample is even sent to a different lab if the first lab is thought to be questionable.

    THC is a derivative of Marijuana not some OTC cough syrup or any other substance. That is just the plain and simple truth of it. This is only true of course if a reliable drug screen has been done and in the proper manner.

    Some have even been gullible enough to believe that ingesting poppy seeds can cause a false positive for cocaine. One would have to ingest a bucket full of poppy seeds to make that happen and even then it would be questionable.

    IF the drug screen is one of those that can be bought OTC then I would think that the IW has every right to demand a legitimate screen be done at a qualified facility. Not in some office personnel's corner cubby!

    I have read reports of some ER's using the OTC drug screen kits and untrained not to mention unqualified office personnel administrating the test. This has been done both pre-employment and post accident. This is all well and good so long as the office personnel are qualified to do such, but most aren't, and IF the drug screen kit fits the proper criteria. Most OTC drug screen kits simply do not fit the criteria.

    Those circumstances, OTC and unqualified administration, is when it would be mandatory to have the test redone in the proper facility with the correct licensed professional administrating the drug screen.

    If the DS was done at a licensed facility with a split sample being obtained, and the proper chain followed, then I doubt that the IW is entitled to a redo. That is just NOT the way it works.

    Dearlg, IF your friend tested positive for THC while on the job, (before, during, or after, the work related injury makes NO difference), s/he could expect to be terminated for illegal drug use. That "might" be affected by the "IF" the ER has a drug policy in force or not. S/he might otherwise have grounds to contest it. It also might be affected by the kind of test being done.

    However, you must keep in mind the bottom line is that we all work under the "At Will Doctrine". Even Montana, which is pretty much the exception of our 50 states, does to some degree. An employee can be terminated at any time for any reason or no reason at all so long as it does not violate anti discrimination laws. An employee is also at liberty to terminate the employment at any time for any of no reason at all. Even IF it is against anti discrimination laws. This is all true only IF there is no enforceable employment contract or the employee is a member of a union with a CBA, Collective Bargaining Agreement, that states otherwise.

    Illegal drug use is an epidemic in this country. Although some may say that what they do on their own time is their own business especially when it comes to drug abuse, simply is not a very intelligent statement.

    If that were to stand true then breaking the law for other things on one's own time shouldn't have any influence on one's employability. After all the conduct is taking place off the clock right. That is just NOT the way it works. Anyone that is employed for someone besides his/her self in this day and age knows that they are subject to a drug screen at any given moment. The epidemic use of illegal drugs is what brought us to this. Anyone participating in illegal substance abuse should expect that when they test positive for an illegal substance that most ER's protocol will call for a termination. Rather an accident has occurred or not.

    Ya'll have a good day. Take care and be well.

    Steel
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  9. #9
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    Default Re: Post Injury Drug Testing

    Quote Quoting lost in connecticut View Post
    Benefits through Worker's Comp have been repeatedly found to be "property" by the courts.
    Before being deprived of property you have a constitutional right to due process (a hearing and chance to examine the evidence against you).

    Correct you are LIC. In most all states the WC IC also has the right to controvert, (deny, challenge, what ever terminology you choose), the claim until such time as a WC board or judge orders them to pay. Even then they can appeal which does an IW little to no good when they are out of work due to the injury and have NO income. For many states "due process" can take many, many, months if not years.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  10. #10
    Join Date
    Dec 2007
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    775

    Default Re: Post Injury Drug Testing

    Thanks Steel,
    You've put into words exactly what I'm trying to say. The quality of the test and how it is performed is always an issue. Just as few years back, the tests themselves were notoriously inaccurate and did give a high false positive rate. Less so currently.
    If an employer is going to deprive an i/w of benefits, at least the test can be performed correctly. I hate to see the insurers gain another tool which might be misused to escape their liability.
    THC presents an interesting problem in that it can stay in the body for an extended period.
    A possible scenario is that someone ingests THC while on vacation in a country where it is perfectly legal, and then returns to work and tests positive 60 to 90 days later. The specific language of the law is an issue. No one should be under the influence or impaired while working, but a blanket policy of termination or loss of benefits based on a positive result for THC is problematic.
    I was heavily involved in this issue representing union workers in a FAA facility. A individual who I was certain did not engage in illegal drug use tested positive and almost lost retirement after 28 years.
    Last edited by lost in connecticut; 03-18-2008 at 06:30 AM.

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