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)
