My employer is terminating employees when they are injured on the job and are forced to go to there workers comp medical facility where they are given a drug test. If they fail the drug test they are automatically terminated. I know of an excellent employee with not issues of marijuana use on the job. Was immediately terminated when they fell and were required to go to the workers comp medical facility. Can they legally do this?

Its pretty standard to drug test people after a WC incident. No, its not illegal unless you only test based on race, age, sex, national origin, etc.

And termination for a positive drug test is certainly legal.

You can read more about the medical care facility selection here http://www.dir.ca.gov/dwc/WCFaqIW.html#2

The thing that's fustrating about this policy is it's non-disclosure by HR. Let's face it HR departments are very good and getting the word out. We've all seen videos about sexual and racial harrasment, been preached at about anti-viloent work place. But never has my company ever mentioned if you fail a workers comp drug test that you're fired without exception. They mention in the employee hand book supporting a drug free environment in the work place, but never mention anything about termination. The deivates so dramatically from typical HR method of operation that it almost seems like they want to sweep this under the rug. I've never heard of an employee being given a drug test once hired except when an workers comp injury occurs. It's a great way to get rid of future workers comp liability employees...drug test them and terminate them. Apparently they ask if you have a medical marijuana card, I guess that's your get-out-of-jail free card. Is it a state law that you can't terminate someone for testing positive if you have medical marijuana card? They also tell people that since they are a forgein company and registered federally that California labor laws do not apply. That seems totally ridculous, if you operate in California you should be governed by CA labor laws.

You are really barking up the wrong tree here. The LAW says it is illegal to use drugs and your employer is absolutely allowed to test for these post accident. The law also permits an exemption from liability under WC if drugs or alcohol are the cause so it is entirely legal and very very common to do post accident drug testing. No, they do not have to tell you this first. Most facilities will run such a test as a matter of course when someone comes in with an injury.

It is absolutely legal to terminate someone who not only broke the law by using illegal substances or used controlled substances in such a way as to be involved in an accident. The list of those who have tried to challenge this is long in every state. The number who have sucessfully tried to argue that they can not be penalized for illicit drug use is nil.

Good response, ElleMD!

Please claify this point. The employee was not found to be using drugs when the accident occured. Does that make a difference? Also the HR department call the employee after the test and asked if she had a medical marijuana card. Seems like it made a difference to the HR department or why would they ask? Can you fire someone for using marijuana not at work but at home who has a medical marijuana card?

It doesn't matter where, or how the illegal substances were consumed, if the person tested positive for drugs, they can be terminated.

If the employee was lighting up between the job and reporting for medical treatment, that is their poor judgement. Does the employee have a medical marijuana card? Did they present it when asked? Was this the only substance in their system? Is the job a safety sensitive one?

Please claify this point. The employee was not found to be using drugs when the accident occured. Does that make a difference? Also the HR department call the employee after the test and asked if she had a medical marijuana card. Seems like it made a difference to the HR department or why would they ask? Can you fire someone for using marijuana not at work but at home who has a medical marijuana card?

here is the thing...

Most companies have a zero tolerance to drugs policy. If you are hurt and get tested (for the reasons above) and test positive, that would violate zero tolerance.

If your being on the drugs contributed to the accident, I would also think about sueing the worker for damages.

Every single time I have ever had a WC claim, I got the person tested for drugs and alcohol in their system. Every time.

The employee tested positive for marijuana use, but she smoked more than a week before the workers comp injury. I'm not a doctor but I find it hard to believe that caused the accident at work. This is the important question, if she had a medical marijuana card does that change the her legal position with respect to her to her WC claim and her termination of employement?

Unless they did a hair test, she smoked it a lot more recently than a week if it still showed up in the test. You still miss the point that it is ILLEGAL to use these substances whether they were the cause of the injury or not. The sole exception is in the case of those who have a medical card, and even then there are limits depending upon the person's profession.

You still haven't answered whether or not this person actually has a card or whether your question is merely academic.

The worker in question did not have a medical marijuana card, but her husband does and of course now she does. Apparently they are very easy to obtain. She was not seriously injured in this WC claim, and doesn't work in a dangerous position...worker is in customer service. Is the claim for WC automatically denied when testing positive for drugs?

Now is irrelevant. If she did not have one at the time, then she was not protected. That's like saying someone who gets in trouble for driving without a license should be let off the hook if they eventually get one. Doesn't work that way.

I have no idea whether the employer or insurer will contest the claim on the basis of the drug test. I'm not them. They certainly have the basis to do so if they choose. They also were within their rights to fire her based on the results.

Thank you for all your posts...I now have a clear picture of the situation!