The claimant’s failure to pass a drug screen is not conduct equating to a refusal of the employer’s modified job offer. Therefore, the board denies the employer’s motion seeking forfeiture of the claimant’s entitlement to total disability.

This case involved a claimant who had a severe work injury on June 3, 2008, in which his left leg was amputated and his thoracic spine was broken. Eventually, the claimant was released to modified work in February 2010, and by July 2010, the employer had a modified job available for the claimant at full wages. The employer had a well known zero tolerance drug policy, and prior to accepting the modified job, the claimant had to submit to a drug screen. He did so, and the urine screen was positive for marijuana. As such, the claimant was not eligible to be rehired. The employer filed a motion seeking a forfeiture of the claimant’s entitlement to TTD compensation arguing that the claimant had in essence refused the modified job offer. The claimant argued that he had little advance notice of the job offer and that his conduct did not rise to the level of a “refusal” as defined in the section 2353, which is the forfeiture statute. The Board sided with the claimant and held that the claimant’s inability to pass the drug screen is not equivalent to a refusal of the job offer. In analyzing the statute, the Board distinguished between a “refusal,” which must be intentional or willful, and a “failure,” which can be due to inattention or inability to perform. The Board denied the motion, finding that the employer had not met the burden of showing that the claimant had refused the job offer. They did provide some guidance to employers in Delaware by suggesting that if the claimant had knowingly engaged in conduct such as smoking marijuana after receiving the job offer in an attempt to evade work through reliance on the zero tolerance drug policy, such conduct would amount to a refusal.

Case Law Alert - 1st Qtr 2011