Refusal to submit to hair test does not create intoxication presumption

In Arkansas, the presence of alcohol or drugs, not the refusal to take a drug test, creates the presumption of intoxication.

Case name: Curt Bean Transport, Inc. and Compensation Managers, Inc. v. Hill, No. CA09-419 (Ark. Ct. App. 11/11/09).

Ruling: The Arkansas Court of Appeals held that an employee's refusal to take a hair follicle test did not create the rebuttable presumption of intoxication.

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What it means: In Arkansas, the presence of alcohol or drugs, not the refusal to take a drug test, creates the presumption of intoxication. An employee is not required to take a drug test of the employer's choosing but may be required to submit to "reasonable and responsible testing."

Summary: A truck driver was injured when his tractor-trailer flipped. Police who arrived on the scene reported the driver seemed "normal" and neither alcohol nor drugs were observed. The driver went to the emergency room four days after the accident when his pain became progressively worse. He called his employer's accident manager who informed him he did not have authorization to go to the doctor and requested the driver undergo a hair follicle test while at the hospital. The driver refused, and his employment was terminated. The employer alleged the presumption of intoxication arose from the driver's refusal to take the hair test.

The Court of Appeals rejected its argument. The law specifically states the presence of alcohol or drugs creates the presumption, not the refusal to take a drug test. The court pointed out there was no evidence indicating the presence of drugs or alcohol after the accident. It refused to interpret the law to mean that a refusal to submit to a drug test creates the presumption and affirmed the award of benefits to the driver.

The court noted that Arkansas' workers' compensation laws are strictly construed, which means that nothing is taken as intended that is not clearly expressed. Therefore, only the "presence" of drugs or alcohol raises the presumption. The law also does not require an employee to take any drug test that the employer chooses, but only refers to "reasonable and responsible testing" by the employer. The court pointed out that even if the employer had created a presumption of intoxication by alleging the driver refused the testing, the presumption was rebutted by the length of time between the date of the accident and the employer's request for hair follicle testing and by the observations of the police at the scene of the accident.

The driver alleged he finally agreed to take the hair test while at the hospital, but it was never performed. He stated he thought the hair test "was a trick" and agreed to give a urine sample or blood sample instead. A urine sample was taken, but he did not see or know of the results of the test.

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January 11, 2010

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