Can Walmart Fire Workers Who Refuse a Drug Test After Getting Hurt at Work?

That’s the question posed by a large class action lawsuit. 

Kris Kenny was employed by Walmart. He helped an elderly customer by lifting a heavy item from the shopping cart to the customer’s car. He re-injured his back.

Under Walmart’s rules, he was required to get a drug test within 24 hours or be fired. He refused to be tested. He was then fired.

He (and others) have sued Walmart, claiming that the drug-testing policy violated workers’ privacy rights under the California Constitution. He also argued that firing workers based on not complying with that allegedly unlawful policy violates California law.

Teaching Point: Why do employers have drug-testing rules like this? A good reason is that some workplace injuries are linked to drug use and abuse. Employers shouldn’t have to pay expensive worker comp claims, including treatment, for these people. 

But Walmart’s rule covers every workplace injury. This is terrible for several reasons. 

First, it deters reporting of workplace injuries, even for people who do not abuse drugs. 

Second, it allows Walmart to administer a broad testing policy. Not only can they test for illicit drugs; they can test for prescribed medications, such as barbiturates that help epileptics control their seizures. Unless Walmart has a specific business justification for testing for your prescribed medications, this is unlawful under the ADA (but hard to enforce in behalf of workers). 
Third, they use this type of test in a growing number of Republican-controlled states, where “fault” is now part of workers comp. In other words, if you work for Walmart in a state such as Oklahoma (where there is a fault element), and you help an older customer with a heavy item, Walmart is off the hook for your back injury. You, the little guy, are entirely on your own.