Drug tests following an injury, questions on immigration status and discrimination against workers who file claims are among the topics in recent court decisions that shed light on questions the workers compensation system has long sought answers to. 

California

For example, California’s 6th District Court of Appeals in an Aug. 26 decision in Manuel v. Superior Court (BrightView Landscape Services Inc.) held that an employer can’t force an injured worker to provide discovery responses to questions about his immigration status.

Rigoberto Jose Manuel injured his back in January 2018 while working for BrightView Landscape Services. He went to an occupational medical clinic and saw a doctor who released him to work. 

Mr. Manuel completed one full shift before his supervisor told him not to return and BrightView terminated his employment.

The parties disputed whether BrightView terminated Mr. Manuel’s employment in retaliation for his injury or whether he failed to return to work because federal immigration authorities questioned his eligibility to work in the U.S.

BrightView filed a motion to compel Mr. Manuel to disclose his immigration status. A trial court granted the motion in November 2020.

The appeals court, however, ruled the trial court’s order was an error. The plain language of Labor Code Section 1171.5 establishes immigration status as irrelevant for the purposes of enforcing state labor laws unless the party requesting the information has shown clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.

The court said BrightView did not meet its burden to show by clear and convincing evidence that inquiry into Mr. Manuel’s immigration status was necessary to comply with federal immigration law.

The court said federal immigration law prohibits a worker from seeking reinstatement or post-discovery back pay, but Mr. Manuel did not seek reinstatement or lost wages as remedies. Thus, the court said, BrightView was prohibited from requesting discovery into Mr. Manuel’s immigration status for his retaliatory firing claim.

Nebraska

The Nebraska Supreme Court in its Sept. 9 decision in Dutcher v. Department of Correctional Services, held the exclusive remedy of workers compensation prohibited a woman from suing her employer for wrongful termination under the state’s Fair Employment Practice Act.

Suzette Dutcher worked for the Department of Correctional Services and injured her right knee in a training exercise in April 2015. The department fired her in December 2016 when it could not find another position that accommodated her physical restrictions.

Ms. Dutcher sued the department alleging violations of the Nebraska Fair Employment Practice Act. A state trial court granted the Department of Correctional Services’ motion for summary judgment, dismissing the case on the basis of exclusive remedy.

Nebraska’s highest court noted this was the first time it addressed exclusive remedy in the context of a civil claim brought under the Fair Employment Practice Act.

The state Supreme Court said exclusivity provisions in the Workers’ Compensation Act are broadly worded, while the Fair Employment Practice Act is silent on its application to disabilities arising from compensable injuries. Without additional guidance from lawmakers, the court concluded the discrimination claim arose from her covered injury and was, therefore, prohibited by exclusivity. 

“To allow Dutcher additional relief in a civil action in district court under the (Nebraska Fair Employment Practice Act) would be to judicially interfere with the quid pro quo determined by the Legislature through the Nebraska Workers’ Compensation Act,” the court said.

Nevada

In another case addressing a wrongful termination claim, the Nevada Supreme Court affirmed the right of employers to fire workers for using recreational cannabis, despite state-licensed businesses selling the drug for recreational and medicinal use.

The court said in its Aug. 11 decision in Ceballos v. NP Palace LLC that cannabis remains illegal at the federal level, so a state law prohibiting adverse employment actions against people who use products that are legal in the state does not protect cannabis use.

Danny Ceballos slipped and fell in the Palace Station break room near the end of his shift in June 2020. He was forced to take a drug test and was fired when the test came back positive for cannabis.

The court said the law creating a private right of action for workers fired for the use of lawful products doesn’t apply to cannabis because it is illegal under federal law and, state law notwithstanding, it is illegal in Nevada, too.

At the same time, the court said state law allows employers to prohibit or restrict employees from using recreational marijuana, so an employee fired after testing positive at work does not have a common-law tortious discharge claim.

“If the Legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so,” the court said. “It did not.”

Alaska

More recently, Alaska’s high court faced a similar question about intoxication and upheld an award of benefits to a worker who admitted to using cocaine and drinking on the job and who tested positive for drugs and alcohol after his accident.

Virgil Adams fell about 30 feet while working on a roof. The property owner did not have comp coverage and the Workers’ Compensation Benefits Guaranty Fund was joined as a party to the case.

Mr. Adams admitted to partaking in the illicit substances he said were readily available at the job site he characterized as “a revolving frat house.” A post-accident drug test showed he had used cocaine within 48 to 72 hours. The test also revealed his blood alcohol level was .049.

The Workers’ Compensation Board said the evidence supported a conclusion that Mr. Adams fell because the supports for the ladder he was on gave way. Since that would have caused anyone to fall, the board said intoxication was not a proximate cause of the accident. 

The Workers’ Compensation Appeals Commission and state Supreme Court both affirmed.

The high court said in its Oct. 7 decision that intoxication is an affirmative defense that requires the employer, or in this case the fund, to prove an injury was proximately caused by the worker’s use of drugs or alcohol.

Greg Jones is senior editor and Sherri Okamoto is legal reporter for Work Comp Central, a sister publication of Business Insurance.