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No need to rehire if worker tests positive after injury

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Does your company have a solid policy banning drugs from the workplace? If not, you are missing an opportunity to deny re-employment to a drug-using worker who was injured on the job.

Recent case: Randy Gilmore hurt himself while working as a carpenter for SOS Staffing Services in a temporary position. He was cleared for light-duty work about a month later. But SOS had since fired Gilmore for violating the company’s drug policy.

Here’s how it happened. Just after the accident, Gilmore agreed to be drug screened, as company policy required. The consent form advised him that his employer has a “drug-free workplace program and will not employ individuals … who test positive for drug use.”

Gilmore tested positive for cannabis, and SOS terminated him. He later admitted that four days before the accident, while on the construction job site, he had smoked marijuana provided to him by an on-site supervisor.

Gilmore sued, arguing that SOS had to rehire him after he recovered from his injury. Incredibly, he also argued he hadn’t precipitated his own discharge because a supervisor had supplied him with the drug. He said he felt obligated to smoke the weed, and that it was a sanctioned activity.

The court wasted no time ruling against Gilmore. It said no employee is ever required to follow instructions that so clearly violate the law. Because Gilmore accepted and smoked the marijuana of his own volition, he was responsible for his discharge and therefore didn’t have a job to go back to once he recovered from his injuries. (Gilmore v. Industrial Claim Appeals Office, et al., No. 07-CA-0589, Court of Appeals of Colorado, 2008)

Final note: Employees are still entitled to workers’ comp benefits even if they are fired for cause. They aren’t, however, entitled to reinstatement if they have been fired in the meantime for misconduct.

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