Texas Labor Code Sec. 451 WC Retaliation

owlbyrd

I am involved in litigation on a Texas Workers' Compensation retaliation case. A DOT regulated driver failed to take a DOT mandated random drug test. After refusing to accept a non-safety function position I terminated him. He had returned from a Workers' Compensation leave of absence that had lasted for just short of one year. He has sued. If any one has been in same or similar situation and you have deposition questions, interragatories, or request for documents, that you found useful sure would like to know about it.

System

owlbyrd, what is your position there? If the employee is suing, all of that process and information would be handled by your attorney. I don't think you need to worry. If you did the termination without going through council, they'll be asking you for documentation. I don't know anything about Texas Labor Code, but I believe under D.O.T. refusing to test is considered a failed test and has nothing to do with workers' comp or retaliation.

lorrie

Is this a refusal to test, or did he "fail to take" the test for some other reason? (I'm not sure that it matters, but if this is a REFUSAL, you want to make sure that is very clear in court.)

Also, does your policy state that positive results (or refusals to test) will result in termination? Or does your policy allow for a DOT driver to complete treatment as recommended after an evaluation by a Substance Abuse Professional?

pork1

OWLBYRD: Whoa nellie, welcome to the forum, I hope we can help. First of all your carrier will be appointing an attorney who will handle all of your concerns. You simply respond to his needs.

Like the others, if you have a good written policy and his return to work and drug testing on a random requirement is ligit, then there is nothing to worry about. Our policy states that any refusal to provide a urine sample for testing is an immediate termination event. If positive, it is also an immediate terminating event. Any refusal of a non-sensitive transfer position would also be a terminating event. If you can prove he got a handbook or policy/ procedures book and can produce his/her signature of same, you have the ee cold. This driver would be out of this company and his replacement would be driving his loads in the morning.

Keep us posted!

PORK

LivindonSouth

Texas has its own and the oddest workers' comp law in the nation. This is a matter for an attorney to guide you through, not one to pursue without counsel. Good luck and let us know how it goes.