A recent Commonwealth Court decision addressed an employee’s entitlement to Pennsylvania workers’ compensation wage loss benefits after his employment 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 that the workers’ compensation judge properly determined that the employer failed to meet its burden of proving that the claimant was discharged for work-related misconduct, the misconduct being his noncompliance with the employer’s post-injury drug-testing policy. The WCJ’s findings of fact identified that the employer’s reasoning for termination of claimant were not “credible.” As the WCJ has sole authority over issues of credibility, of witnesses and the weight assigned to their testimony, these findings of fact were not reviewed by the court in this appeal. However, 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 chocolate 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. The claim petition requested payment of wage loss benefits. Employer subsequently filed a petition to terminate based upon their IME results.
One day post-injury, the claimant was directed to a drug test at WorkNet according to the employer’s policies. A WorkNet employee testified she guided 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 to be angry. He declared that the required observation was an invasion of his privacy. Claimant departed, and he did not provide a second urine sample.
The WorkNet employee testified that the original sample was outside the required temperature range. Since the second sample was not obtained, the drug testing was not completed. The physician also testified regarding the procedures. He explained he had 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 claimant stated that he was uncomfortable being observed. Claimant appeared angry and objected to “an invasion of his privacy.’ He cautioned claimant that not providing a second sample could cause him to lose his job. Nevertheless, claimant left without providing a second urine sample.
The employer’s executive vice president and COO testified regarding their drug-testing policy and the actions after claimant’s testing. The employer’s policies concerning drug and alcohol testing following a work-related injury are covered in the hiring process. In fact, claimant signed an acknowledgment of these policies when he was hired.
When claimant was released for restricted duty work, the COO sent a letter to claimant indicating that the employer was unable to offer claimant future work due to his failure to comply with the post-injury drug-testing policy. The COO testified that the termination of claimant’s employment was due solely to the violation of the drug-testing 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. [1]
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 suspending the claimant’s disability benefits.
Commonwealth Court Reasoning for its Conclusions
On appeal, employer argued the WCJ erred in awarding claimant ongoing disability benefits when 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 showed a lack of good faith.
Employer argued it terminated claimant for his failure to comply with the drug-testing policy. Therefore, the employer was unable to offer him future work, and 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. That decision affirmed the suspension of benefits following his employment termination, as the employee "was discharged for violating the employer's policy prohibiting the use of illegal drugs. His loss of earnings after discharge was a result of his own action, not the work injury.”
The court did not reverse the benefit award based upon Edwards, as the 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. The court further explained that 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 results from a discharge for bad faith conduct that was committed by the claimant, after 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. The court noted the short-coming in this employer’s argument is that prior decisions emphasize the initial credibility determination of the WCJ, in his role as factfinder, 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. Here, the court concluded that 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 that 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 that the WCJ has sole authority over issues of credibility of witnesses.
Review and Update of Post-Injury Drug Testing Policies
Bear Staffing reinforces the need for employers to review and update post-injury drug testing policies routinely. Policies should anticipate potential difficulties in providing a sample upon demand and provide an employee the opportunity to submit a proper sample within the chain of custody.
Similarly, the new employee hiring process and procedures and annual employee handbook should also clearly outline the process for post-accident testing and the results for noncompliance. By revising employer policies to address the developments from the Bear Staffing decision, the argument of termination for cause, and violation of company policy resulting in wage loss, will remain intact in a workers’ compensation setting.
PRACTICE POINTERS:
- We recommend a review of the employer post-injury drug testing policies with your legal counsel and human resources professionals, considering the outcome of this litigation.
- Address the issue of an employee asserting that they are unable to provide a first or second urine sample. Do your testing policies require observation of the employee? Does your policy provide alternative methods or procedures that will allow for compliance and valid testing?
- 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 testing sample. It is a legitimate concern.
- We recommend that employers review: (1) their testing procedures and (2) the physical layout of the testing site room in order to maintain the test site and test sample integrity. Perhaps a secure test room without the employee’s personal effects (outer garments) is a viable alternative to direct observation.
