Ohio Supreme Court Limits Voluntary Abandonment Doctrine In Positive Drug Test Cases

The “Voluntary Abandonment Doctrine” means that an injured worker can act so inconsistently with his or her continued employment that he or she will be considered to have “abandoned” the employment.  Abandonment of employment precludes eligibility for weekly benefits of Temporary Total Disability Compensation (TT).  In Ohio, the Doctrine’s origins prevented an incarcerated individual from collecting TT, no matter the medical condition resulting from  the industrial injury.

In State ex rel. Cordell v. Pallet Cos., Inc., 2016-Ohio-8446 (12/29/16), the Ohio Supreme Court narrowed the circumstances that would make an injured worker ineligible to collect TT under the Voluntary Abandonment Doctrine.  Employer Pallet had a not uncommon drug-free-workplace policy which prohibited use of illegal substances “...at any time whether on or off duty.”  Employee Cordell broke his leg at work and failed a routine post-accident drug screen which  was positive for marijuana. He was terminated as soon as Pallet became aware of the positive test result. Interestingly, Pallet did not contest the allowance of the claim itself, conceding that the drug use had not caused the accident (it was due to a fall off a towmotor which occurred when a truck pulled away from a loading dock too quickly). Instead, it contested Cordell’s eligibility for TT based on the Voluntary Abandonment Doctrine as formulated in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), requiring: (1) a written work rule clearly defining the prohibited conduct; (2) the prohibited conduct having been defined as a dischargeable offense; and (3) the rule was known or should have been known by the employee. 

The Employer’s theory in the Cordell case was that the injured worker had no job to return to as a result of his own voluntary marijuana use. Because he had abandoned employment, there could be no lost wages requiring TT. A divided Industrial Commission accepted this theory and denied TT.  The dissenting member would have granted TT based upon State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249 (2007) (Gross II).  In Gross II a worker had been injured when he violated a workplace safety rule and specific instructions to follow it.  Sometime after the injury, while the worker was collecting TT, he  was terminated for violation of the rule. 

Because the violation and the injury were simultaneous, the Gross II court concluded the termination did not equate to voluntary abandonment.  The discharge was based upon the injury and the denial of TT had violated the underlying philosophy of workers’ compensation by denying benefits based on the fault of the injured worker. Cordell extended the Gross II rationale to pre-injury conduct, holding: “...(A)n employee who is medically incapable of returning to work as a result of a workplace injury and who is terminated after the injury for preinjury conduct that was discovered as a result of the injury has not voluntarily abandoned employment.”  The question was whether the injured worker was medically incapable of performing the former position of employment, the key for TT eligibility.  “...(T)he fact that Pallet had the right to fire Cordell does not change the facts that Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled.”  

Contributing to the decision is the relatively unique medico-legal status of marijuana compared with alcohol and/or other drugs. Marijuana stays in a person’s system for some period of time unlike alcohol, cocaine, or prescription medications whose immediate presence is verifiable.  Indeed, Pallet admitted that the marijuana played no role in the accident.  Furthermore, Ohio now has legalized medical marijuana, raising various issues for workplace drug testing. Two justices dissented and argued that the Voluntary Abandonment Doctrine should have been applied.