Florida employers with a drug free workplace have the right to terminate an employee that tests positive for illegal drugs.  What happens when the employee tests positive for drugs after a post-accident drug test, and the employee is receiving temporary partial disability (TPD) benefits?  The Florida work comp statute states that “misconduct” includes, but is not limited to, the following: (a) conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or (b) carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer. Section 440.15(4)(e) Fla. Stat. (2014) states “if the employee is terminated from post injury employment based on the employee’s misconduct, temporary partial disability benefits are not payable…”

A Florida appeals court gives some excellent guidance to employers on how post accident drug tests can be “misconduct”.  In Bismark Batres v Safelite and Sedgwick CMS, the JCC and Appeals court affirmed that it was proper for the company to stop TPD benefits to an employee fired after testing positive for cocaine.  The employee injured his right shoulder in March 2014, submitted to a post accident drug test and his results were positive.   When misconduct occurs, an employer may terminate an employee and also cease TPD benefits.  Even though the employee had surgery after the drug test (a/k/a misconduct), the medical procedure did not break the causal connection between the misconduct and the loss of entitlement to TPD benefits. The Company did testify that a job would have been made available to the employee within his post surgery  restrictions (if he had not been termed for drug free workplace violation).

What should an employer do to retain the right to fire an employee after a post accident drug test?

1. Maintain a written drug free workplace policy that follows Florida statutes.
2. Written workplace conduct rules that prohibit illegal drug use.
3. Have all employees sign the acknowledgement of the Employee Handbook and/or drug free workplace.
4.  Follow your drug testing procedures to the letter.
5. Be consistent on consequences for positive drug tests.
6. Document safety meetings and discuss drug free workplace rules.

In short, a direct violation of company policy (like a post accident drug test) constitutes misconduct.  It is not necessary  to have repeated violations of explicit policies and several prior warnings to obtain a finding of misconduct.

Consultstu LLC provides fractional HR services to small/mid businesses to achieve compliance, help companies minimize HR costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].