Safety and OSHA News

Workers’ comp: Is an inadequate urine sample a refusal to take drug test?

This company argued its injured worker shouldn’t receive workers’ comp benefits because of an inadequate urine sample during a drug test. How did a court rule? 

Mark Byers worked as a grinder at Acme Foundry in Kansas.

On day at work he was grinding a piece of metal when something struck his arm. He was taken to a hospital for an x-ray and MRI. Byers says the hospital also took a blood sample from him.

The foundry had a company policy permitting post-accident drug testing of employees.

The hospital lab was notified that a workers’ comp drug screen was needed. The lab called the foundry and was told a drug screen wasn’t needed. Byers offered to produce a urine sample if needed.

Byers was released from the hospital that day about seven hours after being injured. He started to walk back to the foundry when Acme’s in-house nurse picked him up a couple of blocks from the hospital.

The nurse told Byers he had to submit to a drug test when he got back to the foundry.

Acme used a urine collection cup that’s a self-contained drug test. The nurse explained to Byers that he needed to provide a urine sample above the temperature gauge on the cup which was marked with a line. Byers complied.

However, the nurse wasn’t able to get a temperature reading from the cup. Byers was heading out the door when the nurse called after him to wait. However, Byers kept going. At that point, the nurse threw Byers’ urine sample into the trash.

The company cancelled a follow-up appointment Byers was to have with an orthopedic surgeon regarding his workplace injury based on his alleged refusal to take a drug test.

Byers disputed the company’s claim that he forfeited his rights to workers’ comp because he refused to give a urine sample. An administrative law judge and the Kansas Workers’ Compensation Board ruled in the company’s favor. Byers took his case to a Kansas appeals court.

1 in 8 urine test cups failed

Acme’s nurse testified that, of the average 24 drug tests she performed a month, about three would result in the cup’s temperature gauge not working. That’s a one-in-eight, or 12.5% failure rate.

The nurse also said in those cases, she would pour the sample from one cup into another. However, she claimed that in order to do that, she needed the permission of the employee.

The Kansas workers’ comp law says an employee’s refusal to submit to a drug test at the request of the employer results in the forfeiture of benefits.

The appeals court made these observations in Byers’ case:

  • When Byers was asked to give a urine sample at the hospital, he offered to do so
  • Byers gave a urine sample; the nurse threw it out; nothing in the record shows she tried to test the urine
  • From Byers’ standpoint, he’d had a long, rough day, from reporting to work at 4 a.m. to being injured 90 minutes later and then spending seven hours in medical treatment, only to be asked to take a drug test at the foundry after he’d already offered to take one at the hospital
  • “Refusal” to take a drug test, as defined in the state’s workers’ comp law, includes “an element of wilfulness or intent;” had Byers wanted to thwart the drug testing, he could have tried to avoid a test at the hospital.

“Byers gave his employer a urine sample,” the court wrote in its opinion. “His employer threw it out. We do not know if it was inadequate, as it was never tested. Byers did not refuse his employer’s post-accident drug test. His workers’ compensation benefits must not be forfeited.”

The court didn’t ask this question, but we think it merits consideration: Who continues to use a work process that fails one in eight times? It makes us curious about other companies’ experiences with these self-contained testing cups. If your company uses them, have you had a similar failure rate? Let us know in the comments.

(Mark Byers v. Acme Foundry, Court of Appeals of Kansas, No. 115,023, 1/27/17)

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  1. If we can’t get an urine test then we pull a hair sample. It is a better test anyway.

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