If You Deny TTD Because an Employee Was Fired for Failing a Drug Test, You Had Better Be Ready to Produce That Drug Test, According to This Recent Case

In Ohio, an employee is not entitled to temporary total disability compensation if they have “voluntarily abandoned” their employment.  Voluntary abandonment is defined as violating a written work rule or policy that: (1) clearly defined the prohibited conduct, (2) was previously identified by the employer as a dischargeable offense, and (3) was known or should have been known by the employee.  State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.

The 10th District Court of Appeals just addressed the circumstances under which a positive drug test can constitute voluntary abandonment.  The results were not favorable for the employer.

In State ex. rel. Stallion Oilfield Construction LLC v. Industrial Commission of Ohio, the Court considered the case of an injured worker who had returned to light duty.  He was then given a random drug test that came back positive for several banned substances and was terminated.

The company handbook provided that employees would be terminated for a positive drug test, which the handbook defined as one that “exceeds the cutoff levels established by the government or other reasonable standards”.

After the worker was fired he  filed for an additional condition and moved for temporary total disability.  The employer contested TTD on the ground that the worker had voluntarily abandoned his employment.  The employer produced the drug test results certificate, which showed that the test came back positive, but did not produce the report showing the specific levels found.

At hearing, the Commission rejected the request to deny TTD on the grounds of voluntary abandonment.  The Commission held that although the work rule was “clearly defined” the employer had not established that it was violated, because it did not include concentrations for the prohibited substances found.  The employer filed a request for reconsideration, which included the concentration levels, but the request for reconsideration was denied.  The employer then filed an action with the 10th District Court of Appeals.

The Court upheld the Commission’s decision.  The Court found that although the concentration levels were produced with the request for reconsideration, at that point it was “simply too late”.  While the Court acknowledged that had the employee handbook been worded differently, merely submitting the toxicologist’s report stating that the test was positive may have been sufficient.  However, since the employee handbook defined specific concentrations necessary for a test to be positive, the employer was required to submit proof of those concentration levels at hearing.

There are two takeaways for employers. First of all, make sure that you have an employee handbook which clearly defines what conduct will result in termination, and strictly follow the handbook policies when terminating an employee.  This lesson is not limited to the workers’ compensation arena.  Secondly, if you are going to contest temporary total disability on the ground that an employee violated a written work rule, be prepared to present the work rule; proof that the employee was aware of the rule (generally a signature page acknowledging receipt of the employee handbook); clear proof that the work rule was violated; and in the case of a positive drug test, the results from the test itself.

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