Can an employee be terminated for failure to submit to a drug test?

Before his termination, mover got hurt and received modified work duties

Can an employee be terminated for failure to submit to a drug test?

An injured worker terminated for good cause is not entitled to temporary disability indemnity if medically-appropriate modified work would have been available if not for the termination, a workers’ compensation administrative law judge said in a recent case.

Meathead Movers – the defendant in the case of Lopez vs. Meathead Movers, Inc., Vanliner Insurance Company – employed the applicant as a mover. His regular work duties included moving business and residential furnishings such as work stations, tables, and refrigerators.

In October 2019, the employee injured his thoracic and lumbar spine when a bookcase struck him. The injury temporarily partially disabled him. The defendant gave him modified duties like office work and washing trucks.

According to the evidence, the employee was scheduled for a random drug screening on Jan. 27, 2021. He did not appear for the drug testing, did not show up for work, and did not contact his employer.

He also failed to reach out to human resources staff even though they were available to help employees with difficulties with their supervisors. One HR staff member previously assisted the applicant with an issue with his supervisor. She tried to contact the applicant multiple times, but he did not return her calls.

The defendant terminated the applicant for cause on Jan. 29, 2021. The failure to submit to a required drug test was considered a failed drug test, which was grounds for termination of employment.

Last December, the workers’ compensation judge awarded the applicant indemnity for permanent partial disability and indemnity for temporary total disability from the termination of his employment until the date his disability became permanent and stationary in September 2021.

The applicant filed a petition for reconsideration. He asked for compensation for temporary disability due to wage losses. He argued that his termination based on failure to submit to the drug screening did not amount to a good cause for termination because his modified work at the time was not the safety-specific regular work to which the drug testing was directed.

Termination was for cause, panel says

A panel of the Workers’ Compensation Appeals Board of California dismissed the applicant’s petition, as the workers’ compensation judge recommended. The termination of the applicant’s employment was for cause, the panel decided.

The judge’s credibility findings deserved great weight since the judge had the opportunity to observe the demeanor of the witness, the panel said. The applicant failed to offer substantial evidence that would justify rejecting the judge’s findings, the panel added.

As the judge said, the employer rationally decided to impose a drug test on an employee whose regular work involved safety-specific activities and who was expected to return to such work as soon as his medical condition allowed it.

The judge noted that the applicant was still a mover, was expected to return to his moving duties, was still subject to the testing requirements applicable to movers, and was properly terminated when he failed to comply. The applicant did not suggest that his modified work was a new or permanent position, the judge added.

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