Worker wins 2nd bid to challenge Wal-Mart's postaccident policy

In California, an employer cannot single out an injured worker for disadvantageous treatment because of the industrial nature of the injury.

Case name: Cantrell v. Workers' Compensation Appeals Board and Wal-Mart Stores, Inc., No. F057606 (Cal. Ct. App. 07/16/09, unpublished).

Ruling: In an unpublished decision, the California Court of Appeal granted the former employee's petition for writ of review and remanded the case to the Workers' Compensation Appeals Board to determine whether the employee's termination for failing to take a postaccident drug test was discriminatory.

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What it means: California's antidiscrimination law prohibits employers from "treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim." An employer cannot single out an injured worker for disadvantageous treatment because of the industrial nature of the injury.

Summary: A Wal-Mart stocker suffered a compensable knee injury at work. The stocker was aware of the company policy that he submit to a drug test on the day of injury or as soon as possible afterward, but claimed Wal-Mart never gave him the proper authorization to take the test. He was subsequently terminated for not taking the test. He claimed Wal-Mart discriminatorily discharged him based on his injury and for filing a workers' compensation claim. He argued that the "employer's demand that a drug test be taken solely because an industrial injury has been sustained discriminates against industrially injured workers." He also argued that Wal-Mart failed to follow its own testing policy.

The WCAB ruled against the stocker. However, the Court of Appeal noted the WCAB merely stated it relied on a workers' compensation administrative law judge's report. The WCAB never inquired into whether Wal-Mart's postaccident drug testing policy discriminated against the stocker based on his work accident. It remanded the case for a determination of whether the policy was discriminatory and whether Wal-Mart demonstrated that its conduct was "necessary and directly linked to the realities of doing business."

The court noted that Wal-Mart's policy prohibits postaccident drug testing in several localities, including San Francisco, Connecticut, Maine, Montana, Oklahoma, Rhode Island, Vermont, and West Virginia.

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August 21, 2009

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