Injured at work? Please place your urine in this vial. - Mark P. Loftus

Saw an interesting decision recently out of the 7th Circuit. In Phillips v. Continental Tire The Americas, Jeff Phillips was a long-time employee at Continental Tire[CT]. He had worked there 23 years as a driver. CT offered a Health Services Department, that provided treatment to injured and sick employees. In April of 2010, Phillips began experiencing numbness in his fingers and went to Health Services. He advised Health Services of the numbness and his plans to file a Workers’ Compensation[WC] claim.

At the time, CT had a written substance abuse policy that drug testing was required in certain circumstances – including the initiation of a WC claim. The policy also provided that if an employee refused, his refusal would be grounds for immediate suspension and possible termination. Interestingly, a worker contemplating a WC claim could still receive treatment – if he agreed NOT to file the WC claim. So CT, in effect, would provide treatment to workers who suffered injuries at work – but only if they agreed NOT to file a WC claim. If they didn’t agree to waive that important right, not only would they have to pay for their own medical treatment, but they would lose their job as well. Not exactly arms length bargaining.

In any event, Phillips decided he wouldn’t take a drug test. Phillips didn’t think that drug testing should be linked to filing a WC claim. So he was fired. Phillips then sued CT, claiming they had retaliated against him for pursuing his WC rights. At his deposition of course, Phillips had to admit that he didn’t have any direct evidence that CT fired him because he filed a WC claim. And he admitted he was advised he had been fired because he had not submitted to the drug test. So the trial court tossed his case, saying he couldn’t prove any link between his WC claim and his firing. Phillips appealed to the 7th Circuit.

The 7th Circuit noted that Phillips had to prove causation – in effect, he had to show his firing was in retaliation for the WC claim filing. But employers have lawyers too. They rarely admit to the worker that he was canned because he filed a WC claim. And they usually don’t send fired workers an email saying, “Yeah, that whole firing thing? We did it cause you filed a WC claim and we don’t like that….hell, it had nothing to do with the drug test!” There are some Illinois state court cases that take a more liberal approach to these cases and allow plaintiffs to offer circumstantial evidence to prove causation. But unfortunately for Mr. Phillips he was in in Federal Court. The 7th Circuit agreed with the lower court and upheld the dismissal.