Kansas Recent Drug Test Case and Its Implications for Employers

Court held that providing an inadequate urine sample is not a refusal to take a drug test

In Byers v. Acme Foundry, 2017 Kan. App. LEXIS 12 (Jan. 27, 2017), a Kansas appellate court recently held that the term “refusal,” as it is used in Kan. Stat. Ann. § 44–501(b)(1)(E)(2012), carries with it an element of willfulness. Accordingly, where an injured Kansas worker was unable to provide an adequate urine sample in a post-injury drug test at his employer’s job site, that failure did not constitute a refusal to comply with the company’s drug testing policy and it could not support a forfeiture of workers’ compensation benefits. The injured worker was taken by ambulance to a local emergency room where he was treated for severe pain in his left elbow. Upon his return to the employer’s premises, he complied with a request to submit a post-injury urine sample using a self-contained drug test collection cup. However, he did not provide enough urine to complete the test and the employer’s test administrator threw it away. The Court also noted that there was no evidence that the worker had been under the influence of alcohol or drugs at the time of the accident and the worker had volunteered to take a drug test while he was at the hospital.

We recently spoke with Kim Martens, the Workers Compensation Practice Group Partner at Hite, Fanning & Honeyman, LLP in Wichita, Kansas about the Byers case. According to Martens, the defendant has filed a Petition for Review to the Kansas Supreme Court seeking review and reversal of the Court of Appeals decision in Byers. Review of this Court of Appeals’ decision is discretionary with the Kansas Supreme Court.  It is not mandatory. So it remains to be seen if the high court takes the case.

LexisNexis: Do you think the court made the right decision in this case by the appellate court?

Martens: If I am an employee or claimant attorney, I think the Court of Appeals made the right decision.  If I am an employer, carrier or defense attorney, I think the Court of Appeals exceeded its standard of review and made the wrong decision.  While a factual case can be made for both sides, I personally side with the findings of fact and conclusions of law rendered by both the Administrative Law Judge and the Appeals Board, that Byer “refused” the chemical test requested by the employer.

LexisNexis:  What are the implications, if any, of this case?

Martens: The Court of Appeals decision, if left in place, will place an increased burden on employers in their effort to successfully enforce chemical testing policies in the work place.  Claimant attorneys in Kansas will be encouraged by this decision to litigate against an employer/carrier application of this benefit forfeiture provision for alleged “refusal” to comply with a chemical test requested by the employer.

LexisNexis: What are the best practices for employers when conducting drug tests?

Martens: (1) Update all chemical testing policies, practices and procedures with assistance of defense counsel to ensure they are in compliance with, and take advantage of, all provisions allowed by law.

(2) Conduct regular education and training of all employees involved in the chemical testing and policy enforcement process, to ensure that the overall policy is being followed consistently and correctly.

(3) Educate those involved in the testing and enforcement as to likely areas where employees may try to game, thwart or obstruct the chemical testing practices, procedures and policies, and emphasize the importance of documenting any employee actions or inactions which evidence an intent to thwart that chemical testing requirement.

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