Safety and OSHA News

Doctor said, ‘Take this pill’ … So why was he fired after a drug test?

A worker injured himself on the job. The doctor told him to take a Darvocet for pain on the day of the injury. So why did a positive drug test for the Darvocet lead to the employee’s firing?

First, some background in this case.

Erik Martin worked for Quick Chek. He was promoted to be a manager the same year that he was diagnosed with Parkinson’s disease.

Martin told his manager about the diagnosis, and she advised him to keep his illness “hush-hush” from the company’s HR director. Martin never mentioned his illness to HR.

During his years of employment at Quick Chek, Martin missed work because of two mini-strokes. He returned to work after each one.

In March 2008, Martin requested and received a demotion. He said his medical condition and the lack of an assistant manager kept him from meeting his work obligations.

On March 17, 2008, Martin injured his back at work. He contacted his doctor who instructed him to take a Darvocet that was previously prescribed to Martin’s mother-in-law. Martin went to see the doctor the next day and was prescribed Percocet to manage pain.

Quick Chek’s drug abuse policy required any employee who was injured at work to take a drug test, and Martin did so two days after his injury.

The drug testing company asked him to list his prescriptions. Martin told them about the Percocet prescription and the Darvocet he took on the day of the injury.

Because he tested positive for Darvocet without a prescription, the testing company reported a failed drug test, and Quick Chek fired Martin.

Martin questioned his firing and produced a note from his doctor saying he advised Martin to take Darvocet.

But Quick Chek didn’t change the decision to fire Martin, so he sued the company for wrongful termination and discrimination as a result of his Parkinson’s Disease. Martin sought relief under New Jersey’s Law Against Discrimination (NJLAD).

Quick Chek’s HR director testified in a deposition that he never made an exception to the company’s zero-tolerance drug abuse policy and he wasn’t aware of Martin’s Parkinson’s diagnosis.

A judge ruled Martin wasn’t able to produce any evidence Quick Chek applied its drug abuse policy selectively or that his positive drug test would have been ignored if not for the Parkinson’s disease. The court threw out Martin’s claim. He took his case to a state appeals court.

Drug policy ‘extremely strict,’ but …

Under the NJLAD, a fired worker must show he was in a protested class, he was performing his job to his employer’s expectations and that his employer sought someone else to perform the same work after he was fired. If the fired employee is able to show those three things, the burden of proof shifts to the employer to show that the termination was for a legitimate, nondiscriminatory reason.

The trial court judge found Martin showed he was in a protected class, he performed his job satisfactorily and he would be replaced after he was fired. The trial judge also found Quick Chek was able to show it fired Martin due to “its extremely strict drug abuse policy.” The judge relied on the HR director’s “unrelenting enforcement of the company’s drug policy to reach such a conclusion.”

“Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin,” the appeals court wrote. “The company relied completely on the assessment of the testing company that Martin ‘failed’ the drug test. Quick Chek … delegate[s] total discretion to interpret the drug test results to the testing company.”

Quick Chek didn’t have an avenue for a worker to appeal a firing due to a positive drug test, the court noted.

But the appeals court said that was OK. Previous rulings stated that employers don’t need to investigate possible legal reasons for a positive drug test before taking action against employees.

Despite calling Quick Chek’s zero-tolerance drug policy extremely strict and harsh, and noting that the company completely turned over determining what qualifies as a positive test to the testing company, the appeals court said Quick Chek was within its legal rights to fire Martin.

Martin lost his job and his discrimination lawsuit just because he took just one pain pill that wasn’t prescribed on paper by his doctor, even though the doctor testified he verbally told Martin to take the pill.

Two points about this case: We’ve all heard that you should never take a medicine that was prescribed for someone else. Without a doctor monitoring the situation, the consequences could be serious. But this case shows there’s another reason to not take medicine that wasn’t prescribed for you: There could be employment and legal consequences … something to mention to employees who might be tempted to pop someone else’s pain meds for a sore back.

Martin’s story also calls into question so-called “zero-tolerance” drug abuse policies. Why “zero-tolerance?” Some say it’s to show that an employer is serious about illegal drug use, even involving prescription medicine.

But companies can have strict policies without invoking the “zero-tolerance” standard. Legally, you can make exceptions, as long as those exceptions are consistent from case to case.

Do you think Quick Chek should have made an exception for Martin? Did the court make the right decision? And what do you think about absolute “zero-tolerance” drug abuse policies? Are there ever cases for exceptions?

Let us know what you think in the comments below.

(Martin v. Quick Chek, NJ Superior Court, Appellate Div., No. A-2637-10T2, 1/18/12)

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  1. sounds like he got the doctors approval after he took the medication….integrity of the doctor is in question as much as Martin.

  2. You never know how this rulings can go…but it seems a bit harsh. I will never forget this one in case it happens to me.

  3. The doctor was in the wrong for not writing the prescription for the Darvocet

  4. While firing Martin seems harsh because he was instructed by the doctor to take the pill that wasn’t his, I fully understand. The company has a zero tollerance rule. If the company deviates from this rule, the next issue that arises has to be evaluated to be sure to prevent discrimination. It’s easier to abide by the rule than to document and remember how each issue was treated. In other words, futuristically, deviatiang from the zero tolerence issue opens the company to discrimination lawsuits.

  5. I think that the policy of the employer is an over enthusiastic application of the “Drug Free Workplace.” The physician gave a VERBAL PRESCRIPTION for the Darvocet. A verbal prescription is a Legal Prescription. Verbal Prescriptions are given to Pharmacy personal, to nurses, to EMTs. everyday! If the Verbal Prescription is not legal then the physician is subject to litigation, and the error was on the physician’s part. Since the entire loss of employment is based on the physician action, then it might be appropriate for the individual to bring litigation against the physician. The error the employee made, was that the drug test should have been done at the immediate time of injury. As a former manager he was aware of the policy. It seems to be a rather absurd policy, as the type of injury may not present itself as significant when it occurs. The bottom line is “If the Doctor say it is OK to take a medication, then it should be.” I would like to know what the medical qualifications are of the HR department.

  6. In this case I think an exception to the “zero tolerance” policy is warranted. Articles appear quite frequently concerning how blind adherence to “zero tolerance” policies can throw common sense and human compassion out the window.

  7. John Richardson says:

    There are a number of errors in this situation:

    The supervisor should have never advised Martin to withhold his illness of Parkinson’s and although he was advised to take the Darvocet, Martin should not have taken it since it was not perscribed to him.

    In lite of that situation, perhaps Quick-Chek could have administered some other form of corrective action (suspension without pay) as opposed to termination.

  8. First of all, Martin should not have listened to his manager (nor should she have advised him) about keeping his illness “hush-hush”. But his taking the 1st pain pill had nothing to do with that. I feel there are exceptions to every rule. I’m going to assume that Martin was in a lot of pain before he was able to go the doctor & that’s why he was told to take the Darvocet. I probably would’ve done the same & would not have even thought–nor cared–about the drug test. Pain can do that to you! Hate to say it, but the company had it’s “legal rights” to fire him…doesn’t mean I agree with them or the courts. So now the big question: Did he get worker’s comp for being hurt on the job? This was not mentioned. Why not???

  9. First, Martin had notified his direct supervisor of the Parkinson’s disease. Secondly, he was following doctor’s orders. If that were all that had occurred he would be in the right.

    The problem is this: most “reasonable” people would make certain that the correct person (in this case, HR) was informed of his diagnosis. He did not do so, somewhat understandably. In addition, if my physician were to tell me to take a medication prescribed for a family member I would do so but only after requesting a written prescription to be faxed or emailed to my pharmacy.

    As far as Zero-Tolerance regarding prescription drugs – prescription drug abuse is more prevalent today than ever before and is as big a problem as illicit drug use.

    In this particular case, it appears that Martin’s manager has some responsibility for not informing HR of Martin’s condition. Because that is the case, an exception should have been considered.

  10. Scott Lemmons says:

    While it appears the courts ruled correctly based on the letter of law. However, I believe there were several errors; if they had been addressed this sitution would not have gotten to the courts.

    Martin should have reported his injury to Quick Chet prior to contacting his own doctor; then most likely the drug test would have been admister prior to taking the Darvocet.

    The testing company should have either taken a moment to investige the claim of a verbal order and/or Martin should have provided the note from his doctor prior to the testing company issue of the report.

    Quick Chek should not “abdicates” its decsion making to a company that does not include any more information other than pass or fail.

  11. Editor’s note in response to Connie: This case was not about workers’ comp. It was about whether the employee was legally fired.

  12. Yes, the employee made an error; however, a verbal prescription for a legal medication from a duly licensed physician is a legal order for medication administration – without regard to obtaining the medication from a pharmacy or a family member’s previously dispensed prescription for the same medication.

    “Zero Tolerance” equates to Zero Thinking. Quick Chek abdicated its responsibility to fairness. Unreasoning blind enforcement of a ZT drug policy is obviously defensible – everybody gets the sharp end of the stick stuck in their eye, NO exceptions – but it is not judicious or rational. And in the end, it is destructive of human capital in the organization.

  13. Ray Scholtens says:

    There are a lot of things going on here…that supervisor should be fired for advising an employee to withhold important information from HR. The company’s drug policy should make allowance for legitimate use of properly adimistrated legal drugs (as an earlier comment stated, a verbal prescription is a legal prescription), and HR law should require it.

    I’m not a big fan of making exceptions to policies, but in this case the policy itself and the laws that support it allow for some injustice.

  14. HL Wiggins says:

    It seems that if a verbal perscription is in fact a legal perscription, then Martin sued the wrong company. The “testing company” falsly submitted a Failed drug test to Quick Chek resulting in Martin’s termination. Whether it is due to a rigidness in the testing companies policies, or ignorance, or anywhere in between a “Failed” testing result was submitted based on there being no persciption. By all accounts (mentioned above and in the article) Martin did what his doctor prescribed. A simple phone call to the physician could have verified a “verbal perscription” had in fact been given. Once that error has been corrected there would be no grounds for a termination as the test results would meet all the criteria to be submitted to Quick Chek as a “Pass.” If Martin is seeking justice and his job
    clearly the definition of a “prescribed” medication should be reviewed.

  15. Kevin Crowley says:

    My understanding of zero tolerance policies for substance abuse, sexual harassment, etc., is that each case identified undergoes the same level of scrutiny to determine the facts involved before making a decision or reaching an outcome, negative or positive. ZT Policies serve several purposes, one of which is to communicate to employees, customers, stockholders, etc., the organization’s stance on a particular issue. More importantly, zero tolerance policies ensure that all cases will get processed without exception and without showing favoritism or bias.

  16. It’s a bad policy that puts an employee in the position of disobeying a doctor’s order. It’s a bad policy that costs the company a good employee over a technical violation and does not allow for mitigation. There are a number of innocent substances and situations that could lead to a false positive. Management is an art, not a science, and as long as exceptions to the rule are justified and well documented, they will stand up to a legal test.

  17. Suzanne S. says:

    It seems to me that we are missing the point. The employee would not have taken any medicine in the first place if he hadn’t had a workplace injury. He should have filed a report to document the injury then gone to see the doctor. In work related injuries, our employee is taken to the doctor by his Supervisor or our on-site EMT so that he can ask the doctor questions after examination and determine if a drug test is needed. Once management was told he was on medications, they should have determined if he was able to perform his job. A drug test days after the injury? That is ridiculous. If the company does not have a policy that a drug test be administered when an injury occurs, then they should implement one. They are as much fault in the first place.

    Could it be that he was fired for Parkinsons, having a workers’ comp. claim or for poor job performance? If that is the case then it sounds like the company was “looking” for a reason to fire this employee.

    I can’t imagine any doctor giving approval for him to take medicine prescribed for another individual. It almost sounds as if the employee took it and then the doctor said that was fine. In any case, if the doctor approved it, then it should be accepted. We have a zero tolerance policy, but if a doctor instructs an employee to take medicine, then we determine if he is capable of doing his normal job. If not, we put him off work (worker’s compensation) until the employee is able to return to work without medication.

    Another point to consider… does their drug company show the levels of medication? Could it be that his level of Darvocet was “more” than just one pill? If that is the case, then their decision is warranted. Too many questions unanswered for us to make any kind of valid opinion.

  18. The policy is the policy and unless it addresses exceptions, the company runs the risk of getting caught up in a continuous string exceptions. If one exception is made outside of the policy, you’re left with answering to the next person who knocks on your door requesting an exception just because of the previous exception.

    Fred, I believe the WC would be a separate issue. I am not sure about NJ law, but being fired for one reason does not exempt an employer from a work related injury.

  19. Stan Sasur says:

    “A worker injured himself on the job.” and not “While performing his job, a workers back was injured” was the most telling for me. The first thing that should have happened was the employee telling his supervisor that he was injured, the decisions following the accident would then have been the employer’s.
    As to what actually did happen I believe the worker should not have been fired for listening to his doctor.

  20. Straight from the company’s website. The Caring section is the one that really gets me.

    Strong Leadership
    Demonstrates integrity and honesty (does the right thing).
    Holds self accountable for team’s personal growth and success.
    Communicates clear goals and expectations to others through regular team meetings.
    Empowers others to think and take action.
    Recognizes others for their achievements.

    Total Customer Dedication
    Actively listens to understand the needs and emotions of our customers.
    Uses customer and team feedback to exceed expectations.
    Anticipates the customers’ needs and expectations.

    Provides a great customer experience.
    Strives to maintain quality and cleanliness standards.
    Be the Best You Can Be!
    Is committed to continuous learning for self.
    Demonstrates a positive attitude every day.
    Embraces change and encourages new ideas.
    Values a balance between personal and professional life.
    Shows a sense of humor – has fun at work.

    “Play to Win”
    Solves problems and addresses the cause.
    Seeks and gives open and honest feedback.
    Actively participates in all huddles and meetings.
    Is committed to achieving the team’s goals.
    Is willing to take risks to get results.

    Act Like an Owner
    Sets and achieves goals to get the right results.
    Pays attention to the details.
    Acts with a sense of urgency.
    Takes responsibility and will not pass it on.

    Actively supports Quick Chek as a partner in the community.
    Listens to our neighbors and reacts to their issues and concerns.
    Maintains caring relationships with team members and customers.

  21. Paul Ozmun says:

    Workers Comp also acts as a protection against further liability for a company. By denying this employee workers compensation (if that is the case), my next question would be does this employee now have the opportunity to pursue legal action outide of workers comp (without the limited liability) through civil court for punitive and compensatory damages. As I read this article, Mr. Martin’s Manager was acting as an agent of the company when he was advised not to report his Parkinson’s disease, this put him at risk from a Safety perspective while at work. Not having access to his job description, it does state that he was at risk of seizures and other medical conditions. By not having the opportunity to apply for FMLA because he was advised to keep his medical condition a secret by his Manager (agent of the company)…at that point the company knew or should have known his need for FMLA, and was legally put on notice. I would say he exposed the company to potential civil action…the zero tolerance policy on drug testing may or could have (depending on statute of limitations) open up an even bigger can of worms. As most of us are aware compliance with (for example FMLA) doesn’t necessarily mean we are off the hook for another legal exposure (ADA).

  22. Big Blue says:

    As I understand the situation this company has a zero toleration policy concerning drugs. As Jill points out this company claims to profess many noble ideas, and the one Jill points out is their last one
    “Caring – Actively supports Quick Chek as a partner in the community. Listens to our neighbors and reacts to their issues and concerns. Maintains caring relationships with team members and customers. Their Zero Tolerance policy appears to contradict their values.

    Many safety professionals appear to live by the “Rules” they are cut and dry, and certainly not open for discussion. The problem is that in the real world everything is not black and white; there are many extenuating circumstances, which should be taken into consideration. It actually takes a little more effort to do your job, than to just say zero tolerance – you are out of here.

    I have seen zero tolerances applied to many areas of business, and in most of those cases outstanding employees pay the price by the implementation of these archaic policies, which are the result of the implementation of poor management procedures, or the implementation poor management skills.
    “Rules” or the “Law” only work in a police state, they are not effective in controlling behavior. When you have zero tolerance there are no circumstances, you must terminate, even when circumstances, and common sense tells you this is wrong, but you have to do it because it is your law.

    Wake up people!

  23. Didn’t this guy have an opportunity to talk to a Medical Review Officer (MRO) before the test result was reported to the employer? He could have provided an affidavit to the MRO from the doctor claiming the verbal prescription.

    I think there’s more to the story if the company, who wants to claim to be zero tolerant, waits a few days to have him take a drug screen. They should have done this on the day of the injury.

  24. Fred Hosier, I’m confused by your statement “If he was fired, it’s unlikely he will receive workers comp.” Are you saying if an employee gets injured at work, the employer can fire them to avoid paying workers comp? The article does state he was injured at work before he got fired.

    Also, I think Martin’s manager should be reprimanded for telling Martin to not mention his medical issue to HR.

  25. To answer Willie, that’s not what I meant. It appears that states have split on this question: If a worker is fired for cause, does the employer have to continue to pay certain workers’ comp benefits for a previous injury? In some states, the answer to that question is, no, the employer does not have to continue paying comp benefits if the employee is fired for cause. See this case from Illinois:
    I was under the impression that was usually the case. Now, after some further research, it appears that isn’t necessarily so. It varies from state to state.
    And I’d never suggest that an employer fire an employee to avoid paying workers’ comp. There’s no question that would leave the employer in legal trouble, and I’d never suggest anything like that. Sorry my earlier comment was unclear.
    Also next week, I’m going to feature a case from another state regarding this issue.

  26. This ruling is idiotic. The employee took the Darvacet at the direction of his physician. The physician testified to that fact. Even if there was no written prescription at the time he took the pill, the doctor was aware of his mother’s prior prescription and authorized him to take one of them for immediate relief, and then later saw him and wrote the prescription for him. Since the medication was taken under his physicians care, this matter should not be considered a violation of the company’s drug policy and he should not have been terminated from the company as a result of it.

  27. I don’t understand how one pill would show up as positive on a drug test anyway. The reporting threshold for any type of opiate used to be 2000 nanograms (sp) which was recently reduced but not enough so one pill would be a positive. It sounds like the drug company used the information the employee volunteered against him. Too bad…….

  28. My opinion only but I feel the judgement was extremely harsh. I would think the doctor’s testimony (a professional) would have been enough to justify the Darvocet. I place some blame on the doctor. He should have written a prescription for the gentlemen but then I don’t know the whole story…maybe there was a reason he advised him to take the Darvocet not prescribed to him (too late to get to a pharmacy, the employee didn’t have money to get drug and was in great pain, etc.) We are only reading a snippet of the evidence and even then some evidence is always withheld which may be very revealing to the “why’s” of decisions that were made. This makes me think that the company wanted to fire him for more reasons than just this incident. This is also a reason that I think too many rules and regulations stifle common sense.

  29. Toxicologist says:

    What no one who has posted so far seems to realize is what the legal statutes require. The laws that regulate prescription medications require that a patient have a legal prescription for those medications from a registered medical professional authorized by law to write such prescriptions. The doctor’s instruction to the worker in this case to take a narcotic drug prescribed to his wife was not lawful because it does not constitute a lawful prescription. Under the law, there is no such thing as a “verbal prescription.” Prescriptions must be written (manually or electronically), and must specify both the drug to be taken and the person who is to take it; so the doctor’s verbal instructions have no legal weight, and he was wrong to tell the worker to do that. Anyone taking a drug prescribed to someone else, whether under the advice of a physician or not, is in violation of the law. Technically, the worker here could also have been criminally charged with the unlawful possession and use of a prescription drug, and a court strictly following the statutes would have had no choice but to find him guilty of that offense. Fortunately, authorities used their lawful discretion to choose not to charge him with a criminal offense; but given the circumstances, the law, and the employer’s written regulations and historical practice in enforcing them, there really were no other options than what happened here. Under the law, the court was correct to rule the way that it did; and for the employer to deviate from policy would have opened the employer up to lawsuits for discrimination or capricious (arbitrary, inconsistent) enforcement by other employees previously or subsequently dismissed for violation of the no-tolerance drug policy. It would have been compassionate, but imprudent, for the company to act other than it did.

    It’s sad for this worker and his family, but those are the facts. The lesson to be learned is: NEVER, EVER take a drug prescribed for someone…

  30. Steve Reliant says:

    It is important to note that the company followed it’s policy. His illness had nothing to do with the decision and the courts said so. So the only issue we are discussing is “was the penalty too harsh?” What Martin did was illegal. If he had stolen $1 should he have been fired? What if it was $5? $10? $50?

    By terminating Martin for this activity, the company is protecting itself from future issues. If he is not terminated, but the next guy is, the question becomes why? Why was the second guy fired and not Martin? Is it because he is (fill in the blank) and Martin is not?

    A legal can of worms is opened when you make exceptions to policy.

  31. Christine Kotapish says:

    Looks like an alternative policy would be to call 911 each time a worker injures his or her back, and while at the hospital get your pain killers.

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