taken to a nearby hospital and underwent surgery for several injuries, including pelvic, chest, and rib fractures and damage to his stomach, spleen, and colon. Te Employer retained a lab technician
to obtain a post-injury drug test. Te lab technician went to the hospital, but Lingo was still undergoing surgery. Te lab technician asked one of the operating room nurses to obtain the urine sample; the nurse returned with the sample. Te lab technician bagged, sealed, and labeled the sample. Te lab technician testified that she had no
first-hand knowledge of who actually collected the sample or what protocol that person followed. Later, the sample was reported positive for the presence of marijuana. Lingo filed for workers’ compensation.
Te Employer raised the statutory rebutable presumption of intoxication defense,5
a financial benefit for employers
in the state of Georgia (and several other states). Te Appellate Division of the State Board of Workers’ Compensation agreed with the Employer’s defense and denied Lingo’s claim based primarily on the drug- test result. Te Superior Court of Early County affirmed. Lingo appealed. Te Appellate Court of Georgia reversed
and remanded the case, concluding that the Employer had not met the statutory requirements entitling it to the rebutable presumption of intoxication defense. Te Court noted that the Supreme Court of Georgia has explained, “. . . [the] applicability of the rebutable presumption is . . . dependent entirely upon compliance with the procedural requirements for testing established by OCGA § 34-9-415[.] . . . [I]f the drug test fails to comply with procedures of OCGA § 34-9-415, the employer will not be entitled to rely upon the rebutable presumption authorized by OCGA § 34-9-17 (b) (3).” OCGA § 34-9-415 (d) provides, in
relevant part: “All specimen collection and testing under this Code section shall be performed in accordance with the following
10 datia focus
procedures: . . . A specimen for a test may be taken or collected by any of the following persons: (A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; (B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health; (C) A qualified person certified or employed by a collection company[.]” Here, the lab technician could not
say who collected the sample or what protocol was used. The Court said, quoting a previous decision, “Because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.” Te case has been remanded for
consideration without the rebutable presumption of intoxication defense.
What would you do? 1. First, one could ask whether, under the circumstances, the post-accident test should have been atempted at all.
2. Second, do you press to obtain a urine sample while the employee is undergoing surgery?
3. Are there any other ways the employer could have determined if the employee had prohibited substances in his system?
4. Could the intoxication defense be raised (without the rebutable pre- sumptions of intoxication)? See the concurring opinion.
Case #2. EEOC v. M. G. Oil Company d/b/a Happy Jack’s ($45,000.00) (settlement)6 An Applicant for a cashier position applied for and received an offer of employment at Happy Jack’s Casino in
South Dakota. Aſter taking a routine pre-employment drug test before starting work, the Applicant was told that the Employer was withdrawing the job offer because the test was reported as positive. Although the Applicant told Happy Jack’s Casino that the test reflected prescription drugs (hydrocodone) that she took for her disability (chronic pain), and even though she told them that she would provide additional information if needed, the Casino refused to hire her. On September 14, 2016, the Employer
was accused by the EEOC of violating federal law by refusing to hire the Applicant based on her disability. On May 18, 2018, the Employer agreed to setle the case for $45,000 and other considerations. Te Employer’s indemnification action against the third-party company contracted to medically review the sample had been dismissed, based on a 1981 United States Supreme Court decision finding that such discrimination cases did not allow employers to seek indemnification from a third party.7
What would you do? 1. First, the impact of the federal Ameri- cans with Disabilities Act (ADA), as well as state disability discrimination laws, must be understood. Te ADA permits testing for “illegal” drugs but “legal” drugs are a different story. Have you considered the impact of these laws on your policy and perhaps more importantly, your procedures?
2. What drugs are you testing for? Will your test panel raise disability discrimi- nation issues? It’s not that you shouldn’t have an expanded panel—it’s a question of being properly prepared for it.
Case #3. Belcher v. CSX Transportation, Inc.8 ($1,044,740.00) A 56-year-old railroad conductor with diabetes misaligned two rail switches,
summer 2018
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