Wayne Francisco v. Mega Industries

No. 15-035903 (Mo. Lab. & Indust. Rel. Comm’n. Feb. 7, 2017)

Factual Background:

Following a work injury, Claimant’s foreman directed him to a nearby clinic for a drug and alcohol test, as per company policy that requires post-injury testing. Claimant refused to give a urine sample, and he testified that the reason for his refusal was that he remembered that he had smelled marijuana at a club over the weekend, and worried he would test positively for the drug. Claimant sought his foreman for advice, and Claimant testified that the foreman told him, “I don’t know what to tell you. I can’t help you.” The foreman’s testimony states that he said something to the effect of “You need to take it for- you know, our company policy is you need to take the drug test. It’s in your best interest.” Claimant left the clinic without the test. The next day, another foreman called Claimant, and told him he needed to take the drug test to remain employed. Claimant took the test, and it was negative.

ALJ Decision:

The ALJ held that Claimant knew of the employer’s policy requiring post-injury drug testing at the time that he refused to take the requested initial drug test. Thus, Claimant forfeited benefits under Section 287.120.6(3).  

Analysis/Holding:

The Commission found that the personnel at the health clinic were the first to request that Claimant urinate in a cup, so the first request by an employer was when the second foreman called the next day, and employee then agreed to take the test. It was found that the first foreman, at best, merely reminded the employee of the employer’s policy. The commission found this reminder to be materially different than a specific request, especially when applying §287.120.6(3) to impose a total forfeiture of benefits for a work injury. As far as refusal, since the company policy says nothing about a time frame for which an employee must assent to or refuse the drug test, the commission held that, at worst, the employee temporarily delayed in agreeing to submit to the drug test. 

The Takeaway:

The employer’s post-injury drug testing policy should be written such that it explicitly requires every injured worker to immediately (within 24 hours) submit to a post-injury drug test.