Court of Appeals Finds Employer’s Failure to Follow its Own Drug Policy Precludes Finding of Voluntary Abandonment

In State ex rel. Stallion Oilfield Construction, LLC v. Indus. Comm., 2019-Ohio-3174, the claimant had an allowed workers’ compensation claim for a back strain.  The claimant returned to work in a light duty capacity.  Pursuant to the company’s policy, the claimant submitted to a random drug test, which revealed positive test results for morphine, codeine, and opiates.  Under the company’s work rules, an employee will be terminated if a drug test is positive.  The Company handbook defined a positive test as one which results in a concentration of specifically enunciated drugs, which exceed government cut-offs; for morphine, codeine, and opiates, the cut-off level is 2000 (ng/ml).  In the claimant’s case, the drug test came back positive, but did not set forth the concentration levels.  Nevertheless, because of the positive drug test, the company terminated the claimant’s employment under its policy.

After his termination, the claimant moved the Commission to additionally allow his claim for a disc condition and to award temporary total disability (TTD) compensation.  TTD compensation was awarded at all hearing levels, including the full Commission, notwithstanding the claimant’s admission that he ingested codeine and morphine and the company’s argument that the claimant’s termination constituted a voluntary abandonment under the Louisiana-Pacific doctrine, precluding payment of TTD compensation.  The company filed a complaint in mandamus to vacate and reverse the order of the Commission.

On mandamus, the 10th District Court of Appeals found the company failed to follow its own policy in terminating the claimant.  Although the claimant did, in fact, show evidence of morphine, codeine, and opiates in his system, the policy defined “test positive for drugs” to require drug concentrations above established levels.  Because the company terminated the claimant without the requisite concentration amounts, the termination could not be deemed to preclude TTD compensation under Louisiana-Pacific.

Employers should note the importance of strict compliance with their own work rules if the employer contends termination in violation of such rules amounts to a voluntary abandonment of employment, precluding the payment of TTD compensation.  This does not mean the employer may not have just cause for termination.  However, under workers’ compensation law, termination from employment rises to the level of a voluntary abandonment only  when the work rule is written, clearly defines the prohibited conduct, and identifies the conduct as dischargeable.  In addition, the offensive conduct must be known or should be known by the employee as dischargeable conduct.  If an employer fails to follow its own work rule, then the defense of voluntary abandonment collapses.


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