Pennsylvania Employers – Now is a good time to review your Post-Injury Drug Testing Procedures & Policies.
A recent Commonwealth Court decision considered an employee’s entitlement to wage loss benefits when he was terminated for noncompliance with the Employer’s post-injury drug-testing policy.
See: Bear Staffing v. WCAB (Shawn Logan): No. 949 C.D. 2020; Memorandum Opinion, not reported; Filed October 15, 2021.
The Commonwealth Court concluded the Workers’ Compensation Judge properly determined that the Employer failed to meet its burden of proving that Claimant was discharged for work-related misconduct, the misconduct being his noncompliance with the Employer’s post-injury drug-testing policy. The WCJ’s found the reasons for Employer’s termination of Claimant were not “credible”. As the WCJ has sole authority over issues of credibility of witnesses, this finding and conclusion was not reviewed by the Court on appeal.
The facts presented warrant our further review...
Factual
and Procedural History
Claimant worked for a temporary employment agency, which assigned him to work at a chocolates manufacturer. Claimant slipped and fell, striking his head and back on the ground. He sustained injuries to his head, neck, and lower back. A Claim petition was filed and Employer filed a timely answer. Employer issued an amended Notice of Temporary Compensation Payable; Medical-Only (NTCP-MO), acknowledging Claimant’s work-related injury. Employer subsequently filed a Petition to Terminate based upon it’s IME results.
One day post-injury, Claimant was directed to a drug test at WorkNet in accordance with Employer’s policies. A WorkNet employee testified she took Claimant through the drug and alcohol testing. A breathalyzer test for the presence of alcohol, returned no indications. For the drug screening, Claimant was required to provide a urine sample. The first sample exceeded the 100-degree temperature threshold for an acceptable sample. The Employer policies required Claimant to provide a second sample under observation. Claimant said he was unable to provide another sample right away, so he was given some water and waited.
A male physician was available to observe Claimant when he provided the second sample. Claimant and the physician went into a bathroom. Shortly thereafter, they came out and Claimant appeared angry. He declared the observation was an invasion of his privacy. Claimant did not provide a second urine sample. The WorkNet employee testified the original sample was outside the required temperature range. As a second sample was not obtained, the drug testing was not completed.
The physician also
testified regarding the procedures. He has encountered people who have
difficulty providing a second sample as they recently urinated and/or assert
that they cannot do so while someone is watching them. The physician testified he
went with Claimant and Claimant stated that he was uncomfortable being
observed. Claimant appeared angry and objected to “an invasion of his privacy’.
He cautioned Claimant that this was something that could cause him to lose his
job, but Claimant left without providing a second urine sample.
Employer’s Executive Vice President and COO, testified about its drug-testing policy and the actions after Claimant’s testing. The Employer policies concerning drug and alcohol testing following work-related injuries are covered in the hiring process. Claimant signed an acknowledgment of these policies when he was hired.
When Claimant was released for restricted duty work, he sent a letter to Claimant, indicating the Employer was unable to offer Claimant future work due to his failure to comply with the post-injury drug-testing policy. Mr. Johnson testified the termination of Claimant’s employment was due solely to the violation of the policy. If Claimant had not violated their policy, Employer would have found work for Claimant within his restrictions, without a loss in earnings.
Workers’ Compensation Judge Decision
The WCJ found that “Claimant is also credible and convincing that he was not purposefully refusing to provide a urine sample as required by . . . Employer’s work policy.” The WorkNet employee and physician were found to be credible regarding their attempts to obtain a second urine sample; however, the WCJ credited Claimant’s testimony “as to Claimant’s inability to provide the second urine sample and not his refusal to provide that sample.”
The WCJ found that Claimant met his burden of proof to establish he sustained work-related injuries that rendered him unable to perform his job. The WCJ concluded, Employer failed to establish that Claimant fully recovered from his work injuries. (Claimant’s medical evidence reflected diagnoses of: a scalp contusion, post-concussive syndrome, post-traumatic cephalgia, cervical strain/sprain, thoracic sprain/strain, lumbosacral strain/sprain with evidence of radiculopathy).
The Appeal Board affirmed the WCJ’s decision, reasoning the WCJ determined that Claimant’s discharge from employment resulted from his inability rather than his bad faith refusal to comply with Employer’s drug-testing policy. The Employer failed to establish the requisite “bad faith willful misconduct” necessary for the suspension of Claimant’s disability benefits.
Commonwealth Court Reasoning for its Conclusions
On appeal Employer argued the WCJ erred in awarding Claimant ongoing disability benefits where he was terminated for failing to comply with Employer’s drug-testing policy, as his termination, rather than his injury, was the cause of his subsequent wage loss.
Employer acknowledged the WCJ made credibility determinations regarding Claimant’s inability to provide a second urine sample - but this should not be the end of the analysis, as the WCJ also credited the WorkNet employee and physician descriptions of the Claimant’s failure to provide a second sample, including Claimant’s angry behavior and use of profanity. Employer argued this demonstrated that Claimant refused to cooperate with the testing and there was a lack of good faith.
Employer argued
it terminated Claimant and was unable to offer him future work due to his
failure to comply with the drug-testing policy - this was the sole reason for his
loss of earnings.
Employer compared this case to Edwards v. WCAB (Sear’s Logistic Services) (Pa. Cmwlth. 2001) where an employee sustained a work injury and took a post-injury drug test, which indicated his use of an illegal drug. Employer terminated him due to this result. The Court affirmed the suspension of benefits following his employment termination, as the employee “was discharged for violating the employer’s policy prohibiting a use of illegal drugs. His loss of earnings after discharge was a result of his own action, not the work injury”.
In the instant case, the Court did not reverse the benefit award based upon Edwards, as this WCJ credited Claimant’s explanation that he was unable to provide a second urine sample while being observed, and that he did not intentionally refuse to comply with Employer’s drug-testing policy.
When an employer alleges the claimant’s loss of earnings is the result of a post-injury involuntary discharge, the employer has the burden of proving that suitable work was available or would have been available, but for, the circumstances which lead to the claimant’s discharge.See: Reyes v. WCAB (AMTEC) (Pa. Cmwlth. 2009) quoting Second Breath v. WCAB (Gurski) (Pa. Cmwlth. 2002).
A claimant is not entitled to disability benefits where the loss of earnings is a result of a discharge for bad faith conduct that was committed by the claimant subsequent to the injury or was not known to the employer until after the injury. See; Vista International Hotel v. WCAB (Daniels) (Pa. 1999) and BJ’s Wholesale Club v. WCAB (Pearson)(Pa. Cmwlth. 2012).
The WCJ must determine whether a claimant was discharged for conduct evidencing a lack of good faith. This is a question of fact to be determined by the WCJ.
The Court noted the short-coming in this Employer’s argument is that case precedents emphasize the initial credibility determination of the WCJ, in his role as fact-finder, as to whether the claimant acted in bad faith with respect to an employer’s rule or policy, resulting in the discharge. See, e.g., Vista International Hotel, 742 A.2d at 659.
The Court concluded the WCJ properly determined that employer failed to meet its burden of proving that claimant was discharged for work-related misconduct. The WCJ specifically found the reasons for employer’s termination of claimant were not credible.
The WCJ expressly credited Claimant’s testimony that he did not intentionally refuse to comply with the drug-testing policy. Instead he was unable to comply as he could not produce a second urine sample while observed. The WCJ’s findings support the conclusion that Claimant did not act in bad faith with respect to the Employer’s drug test policy, even though his failure to comply resulted in his termination. Once again, the Court emphasized the WCJ has sole authority over issues of credibility of witnesses.
PRACTICE POINTERS:
1. We recommend review of the Employer post-injury drug testing policies with your legal counsel and Human Resources professionals.
2. Address this issue of an Employee asserting he/she is unable to provide a first or second urine sample. Do your testing policies require observation of the employee? Are there alternative policies or procedures that will allow for valid testing?
3. A simple Google search - will identify the validity
issues raised by the receipt of a urine sample that exceeds the 100-degree
temperature threshold for an acceptable sample.
Review the testing procedures utilized to maintain the test
site integrity.
