Safety and OSHA News

Disciplined because he filed for workers’ comp or due to positive drug test?

An employee claims his employer retaliated against him for collecting workers’ comp benefits. What did a court think about his claim? 

Richard Baker was an employee of the Camden County Highway Department (CCHD) in New Jersey. Baker holds a commercial driver’s license (CDL).

On Dec. 7, 2012, Baker struck his head on an I-beam inside a supply warehouse and fell down a flight of stairs, injuring himself. He collected workers’ comp benefits until he was medically cleared to return to work in September 2013.

After his return to work, Baker was one of nine workers at CCHD who were randomly chosen to undergo drug testing. The tests are performed by an independent third-party that chooses the workers randomly from a list provided by Camden County. Baker’s drug test on Oct. 21, 2013, was positive for amphetamines.

The medical testing facility allows an employee to provide a list of medications. Baker told the testing facility he was taking Nexium, Sudafed, Motrin and a nasal spray.

On Oct. 25, 2013, the testing facility notified CCHD that Baker tested positive for amphetamines. Soon after, the employer issued a preliminary notice of discipline to Baker charging him with violation of federal regulations concerning drug and alcohol use (remember, Baker holds a CDL).

Baker hired an attorney and in January 2014, he entered into a settlement agreement in which he accepted a five-month suspension and was required to complete eight substance abuse educational sessions.

Then, Baker filed a complaint which alleged retaliation and that CCDH discriminated against him based on a disability or perception of a disability.

Specifically, Baker claimed CCDH retaliated against him by requiring he take the drug test. Baker alleged the testing was targeted, not random, and claimed CCDH didn’t follow its own policy of waiting for the testing facility’s review of medications he was taking. CCDH filed for summary judgment (i.e., to have Baker’s complaint thrown out).

A judge rejected Baker’s claim CCDH had retaliated against him for accepting workers’ comp. The judge also rejected the claim that Baker was targeted for drug testing as retaliation.

The judge noted the employer used an independent third-party for testing and that the results were reviewed by a qualified scientist. Also, Baker didn’t dispute the drug test and instead entered into a settlement agreement and agreed to a suspension.

There was no direct or circumstantial evidence of discrimination based on perception of disability either, the judge said. After Baker’s injury and time off, he was cleared to return to work full-time, at full duty.

Baker appealed, arguing a jury could conclude he was retaliated against for being absent from work on medical leave and CCDH’s reason for suspending him was discriminatory.

Recently, the Superior Court of New Jersey upheld the decision. The court found:

  • there was no evidence the drug test wasn’t random
  • the drug testing facility contacted Baker to provide his prescription medications before contacting CCDH and before disciplinary charges were filed, and
  • Baker agreed to his suspension as a result of the drug test.

For those reasons, the appeals court affirmed the lower court’s ruling: Baker’s complaint again CCDH was thrown out.

(Richard Baker v. Camden County Highway Department, Superior Court of NJ, No. A-1482-17T3, 11/8/18)

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