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Wrongful Discharge: Employer OK'ed to Terminate Employee Who Refused to Sign Drug Screen Form

12.01.2008

In a recent decision, the Kentucky Court of Appeals affirmed a lower court’s dismissal of a wrongful discharge claim filed by an employee who was terminated for refusing to sign a drug screen consent and release form, which the employer required of all its employees. Let’s take a look.

Facts 

Gray Kentucky Television, which operates a Lexington television station, adopted a policy designed to prevent substance abuse by its employees. As part of the policy, employees were required to sign a chemical screening consent and release form. Employees, including Robert McCown, were given a deadline in which to sign and return the forms. McCown refused to sign the forms, specifically objecting to the following language:

I hereby release and hold harmless the Company, the medical review officer or other medical professionals, the laboratory, their employees, agents and contractors from liability arising from this request to furnish this or any specimen or sample, the testing of the specimen or sample, and any decisions made concerning my application for employment or my continued employment, based upon the results of the tests.

McCown spoke with the station’s general manager, who agreed to give him a few weeks to speak with an attorney. McCown never informed the manager about the results of that consultation. Meanwhile, the manager consulted with both in-house and outside counsel to confirm the release’s validity under Kentucky law. Given one last chance to sign the release, McCown was terminated when he again refused to do so.

McCown filed a lawsuit against Gray alleging that he was wrongfully discharged in violation of Kentucky public policy. The case proceeded to trial, and the employer asked the court to dismiss the suit.

Court’s decision 

The trial court dismissed McCown’s claims, concluding that he failed to prove that the release unlawfully required him to give up a right protected under Kentucky law.

The Kentucky Court of Appeals agreed, concluding that the release merely sought to protect Gray from claims by an employee who experienced adverse employment consequences after an incorrect positive drug or alcohol test result. The court noted Gray’s concession that the release in no way sought to waive an employee’s right to seek workers’ compensation benefits or pursue a personal injury claim arising out of a potential injury incurred in providing a sample or specimen. Accordingly, the court determined that Gray didn’t violate any Kentucky public policy by terminating McCown for refusing to sign the release. McCown v. Gray Kentucky Television, Inc., Case No. 2007-CA-1947 (Ky. App., 2008).

Bottom line 

The court’s decision should provide some solace to the many employers that require their employees to sign similar release forms. The court clarified that so long as such forms don’t seek to deny employees substantial statutory rights, such as the right to seek workers’ comp benefits, they’re valid and enforceable. But more important, employees refusing to sign such forms may lawfully be terminated.

Copyright 2008 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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