Drug and Alcohol Testing for Injured Employees: Part III

Recently, we have reported on the importance of drug and alcohol testing when an employee is injured to determine whether there are any possible intoxication or fraud defenses.  Last week, we suggested that employers require their injured employees to submit to drug and alcohol testing following on the job accidents to determine whether an intoxication defense may be used under Section 11 of the Illinois Workers’ Compensation Act.  The Act provides that if an employee refuses to submit to drug or alcohol testing, it creates a rebuttable presumption that the intoxication was the proximate cause of the accident.

What happens, though, when an employee refuses to submit to the drug or alcohol testing?  The Seventh Circuit addressed this issue in Phillips v. Continental Tire The Americas, 743 F.3d 475 (7th Cir. 2014).  In Phillips, an employee was terminated after he refused to take a required drug test.  The employee had filed a workers’ compensation claim, so he sued claiming retaliatory discharged.  The Seventh Circuit held that firing an employee for refusing to take a required drug test before he can initiate a workers’ compensation claim is NOT retaliatory discharge.  The Seventh Circuit found that mandatory drug testing policies do not discourage employees from filing workers’ compensation claims., and they noted that Section 11 of the Illinois Workers’ Compensation Act directly contemplates drug and alcohol testing.  The Court found that it was legitimate to terminate the employee for his refusal to take the mandatory drug test, and that this did not constitute retaliatory discharge.

Phillips reiterates the importance of having clear drug and alcohol testing policies in place to cut down on intoxication and fraud.  Employers should be aware that under Phillips, they can terminate any employee who refuses testing.  This, along with Section 11 of the Workers’ Compensation Act, are tools that can help employers be sure that their employee’s claims are legitimate.