employment. In a separate opinion, Rice/mId Foods. I"c. v.
DireClor of u,bor, 17 the Coun of Appeals held that an employee who was discharged for violating an employer's drug/aleohol policy by refusing to submit to a drug/alcohollCSI after consent路
ing to abide by his employer's policy was likewise ineligible for unemployment benefits. The Coun's holding in that case also illustrates the interaction between employment decisions made
under drug/aleohol policies and the State's "atwill" employment doctrine. 18 Specifically, under the Coun's reasoning in Rice/lind Foods employers may require that at-will employees work pursuant to a unilaterally imposed
drug/aleohol policy or be subjCCl to dismissal. 19 More recently, the Coun of Appeals' holding in Grace Drilling was reaffirmed in George's. Inc. v. Director. El1Ip/o)'l1lelll Security Deparrmelll.20 In George's, Inc.. the Court of Appeals, (en banc), reaffirmed its holding in Grace Drilling observing that: Itlhe dangerous nature of the employer's industry or an employee's job dUlies, as well as the existence of risk factors, may justify a drug-free policy as reasonable when the policy is implemented to promote safety.21 Upon reviewing the record in George's. IIlc.,
the Coun found that the employee's job duties included "cleaning machinery" which apparently satisfied the "reasonableness" requirement. 22
More imponantly, the Coun went on to hold that drug testing policies are not rendered unreasonable by requiring the discharge of employees who test positive for trace levels of drugs or can路 trolled substances in the absence of proof of
impairment. On this point, the Coun specifically stated that: laIn employer is n01 required to show that
the employee is actually impaired in his job performance before he may discharge an employee after a drug test indicates trace amounts of illegal drugs 23 (emphasis
added). According to the Coun, "[illiegal drug use brings potential hann to the employer, regardless of the worker's demonstrated impairment, especially when the worker's duties involve exposure
to machinery."24 In addition, the Coun upheld as reasonable the employer's policy of testing
employees after they sustain an on-the-job injury. This holding follows the lead of other jurisdictions which had previously upheld such lesting 25 As a general matter, it is important to note
that, based upon the foregoing cases. the Coun of Appeals has established: (I) drug and aleohol ~~
Tbr Irkmal I.awjrf
fall 1996
free workplace policies, along with employee testing by private employers to enforce such policies, is permissible in Arkansas; (2) a drug/aleohoi testing policy is reasonable even if it provides for the discharge of an employee who tests positive for trace levels of drug or controlled substances whether or not the employee is
actually "impaired"; and (3) a policy which pro-
drug/alcohol testing policies under Arkansas law. However, caution is warranted when evaluating a drug policy in a workers' compensation case. The reasonableness of an employer's drug testing policy may only be relevant in evaluating acompensation claim insofar as the tests acquired from such policies are themselves rea-
vides for testing of an employee who sustains an
sonable (i.e. reliable). As discussed below, test
on-the-job injury is also reasonable regardless of whether there is any proof thai employee was
results from urine, blood or breath samples will
actually "impaired" at the time of the accident.
Compensation Commission at a hearing simply
Additional legal considerations which are beyond the scope of this writing will arise if, for example, a collective bargaining agreement exists26 or the employer is the state or federal government or government contractor. 27 Furthermore. the Americans with Disabilities Act also governs
eenain aspects of employer mandated drug/aleoholtesting of which Ihe practitioner should be aware.28
not be precluded as evidence before the Workers' because they were obtained under a policy which is determined to be unreasonable, even though such a finding would be relevant in other areas of the law. 29 Rather, for purposes of workers' compensation, the dispositive issue is whether the test itself was "reasonable and responsible" and
administered by "properly trained medical or law enforcement personnel.,,30
On the other hand, the Commission has the authority to determine thc admissibility of evi-
Funhennore, drug/aleoholtesting policies take different forms and to date Arkansas appel-
dence and is not bound by technical rules of pro-
late couns have not specified any criteria for
cedure or evidence. Hearings before the Commission are to be conductcd in a manner
such policies. In fact, the Coun of Appeals has not held that such polices have to be in writing nor has it specified any procedure or standards which must be followed in administering tests under such policies. However, in light of the foregoing decisions, some general observations can be made concerning what mayor may not be
permissible (i.e. considered reasonable). Specifically, the Coun upheld as reasonable the drug/alcohol testing policies at issue in Grace Drilling Co. and more recently the one in George路s. Inc. These polices share common characlCristics which shed some light on what
form of drug testing policies will be considered reasonable. First, the policies in both of these cases were wrinen, and employees were given notice of the
that "best ascenains the rights of panics." With this authority. the Commission may determine thai test results obtained under a policy it finds to be unreasonable will not be admissible as evidence. At this lime, it is unclear whether under the Arkansas Workers' Compensation Act the Commission even has the authority to examine
the reasonableness of an employer's drug/aleohol policy. However, il cenainly has the authority to examine the reasonableness of how the tests are administered) I Arguably, so long as the test was reasonable and the test's results can be verified, the Commission's inquiry should cease
leaving the broader public policy questions to other areas of the law.
policy before it was implemented. Second,
III THE ARKANSAS
employees were given the option of working
ACT AND THE INTOXICATION DEFENSE
under the policy or leaving their employment. Third, employees contractually obligated themselves to abide by the employer's policy as a
Since its inception, the Arkansas Workers' Compensation Act has included an "intoxication"
condition of continued employment. Fourth, the policies in question set forth what "triggeri"g el'ellts" would cause an employee to be subjected to a drug test, e.g. pre-employmcnI screening, random testing, reasonable cause or suspicion, or the happening of a work-related accident which required ofT-premises medical attention. Finally. the policies expressly defined what constituted a violation of the policy and the potential penalties
workers. 32 However, this defense was narrowly
for a violation. While the foregoing attributes should 110t be viewed as court mandated requirements, they do provide some guidance to practitioners in evaluating the reasonableness of
WORKERS' COMPENSATION
defense to claims for benefits brought by injured defined by the statute and strictly applied by the Commission and Couns. Specifically, in order to bar to recovery of compensation benefits, an employee's intoxication must have been the sole cause of the accident. Consequently, evidence that an employee who was killed after having consumed approximately two pints or liquor
before falling out of the back end of a truck and being killed was held to be insufficient to preclude an award of benefits 33 Rather, the
employer had the burden of "showing not only