If you are Injured on the Job and in a coma, can your employer have your blood tested for drugs?
Unbelievable to think this could happen, but it did. Attached is the Order on the Motion in Limine (a motion to request that certain testimony be omitted from evidence) on drug tests performed on my client while he was in a coma.
It is a good Order, but not a total exclusion. It does shift the Burden of Proof to the e/c (employer/carrier), so I can attack the collection procedures. The actual test findings are suspect, as drug results on blood are not even defined by the rules.
The end result is very positive, but the claimant DID sign an employment agreement to drug testing.
The big problem I have with the order is that the Judge acknowledges that the employer violated the initial orders he entered to preserve and release
the samples. There should be consequences for ignoring the 1st order.
Here are the answers to the questions you may be pondering:
If you are Injured on the Job and in a coma, is it legal for your employer to have your blood tested for drugs? Sometimes. The hospital probably tested your blood as part of your emergency diagnosis/treatment and those results could be used depending on your employment agreement. However, the results, in this case, are not conclusive as they are not defined by the rules of the court.
Did the hospital violate HIPPA or other laws and can they be held liable for damages? Depends if they shared the results to the employer without a court order or worker’s consent. In this case, a court order was present.
If this happened to you could your employer be sued for a violation of privacy and other personal injury claims? Possibly, but this doesn’t mean that it would be a winnable case, especially with the signed consent in the employment agreement.
