Lingo v. Early County Gin, Inc., 2018 Ga. App. LEXIS 328by Nicole Wong
Hamilton, Westby, Antonowich & Anderson, L.L.C.
Recent case regarding: drug test, chain of custody, rebuttable presumption
This recent decision from the Court of Appeals affects the employer’s entitlement to a favorable presumption that an on-the-job accident was caused by the employee’s ingestion of marijuana. The employee in this case was involved in a workplace accident when he was struck by a truck which crushed his body against a loading dock. He was immediately taken to the hospital for emergency treatment. The employer requested a post-injury drug test and the lab technician retained by the employer went to the hospital to obtain a sample. At the evidentiary hearing, the employer’s lab technician testified that he was not permitted to enter the operating room where the employee was undergoing emergency surgery because he was not a hospital employee. The lab technician told a nurse that a urine sample was required from the employee. Shortly after, the nurse returned with a urine sample. After testing, the sample revealed the presence of cannabinoid metabolites.
Under O.C.G.A. § 34-9-17(b)(2) if any amount of marijuana is found in the employee’s blood within eight hours of an alleged accident, there shall be a rebuttable presumption that the injury was caused by the ingestion or marijuana. This case states that in order for an employer to be entitled to that rebuttable presumption, the employer must provide evidence that the testing was performed in accordance with the requirements established in O.C.G.A. § 34-9-415(d).
The Court of Appeals found that the employer in this case failed to establish that an authorized individual under the Code Section collected the urine sample because the lab technician did not have first hand knowledge of who collected the sample and what protocols the collector followed. The only testimony provided by the lab technician was that a nurse came back with a urine sample after one was requested. The Court of Appeals reasoned this was insufficient to show proper chain of custody and thus the employer could not rely on the favorable rebuttable presumption. The Court suggested that the employer could have met its burden by identifying everyone in the operating room as qualified to draw the sample, but there was no evidence in the record establishing who was in the operating room.
Employers should have a procedure in place ensuring that the method of collecting blood, breath, urine, or other bodily substance samples is done by an authorized individual. O.C.G.A. § 34-9-415(d)(5) sets forth persons authorized to collect a test sample, but generally it can be a licensed or certified medical professional, an employee of a certified laboratory, or a person who can show he or she is qualified to perform a drug test. From a chain of custody point of view it would be wise to have a person who actually obtained the sample in court to testify to proper chain of custody. If a situation involves an employee undergoing emergency treatment as in this case, it will be important for the designated sample collector to take the extra step to ensure that he or she knows who is collecting the sample, and be able to testify that the collection of the sample tested was done in accordance to the procedures in O.C.G.A. § 34-9-415(d).
Nicole graduated from Clemson University in 2010 and received her J.D. from John Marshall Law School in 2014. While in law school, she was a member of the Mock Trial team, served a term as Treasurer of the Student Bar Association, and received two CALI Awards for Academic Excellence in Legal Writing and Transactional Drafting. Nicole began her legal career as an Assistant Solicitor in Gwinnett County. She has first-chaired jury trials and bench trials, argued motions, and has extensive experience in plea negotiations.