Drug and Alcohol Testing

Wasted Time Sinks Bid to Deny Claim

An injured employee left company premises before drug and alcohol testing could be administered. But a court said he wasn’t to blame.
By: | August 14, 2017 • 3 min read

A post-incident drug and alcohol testing program can be a useful tool. But only if you’re prepared to administer tests on the spot.

One employer failed to administer a breathalyzer test in a timely manner after an employee injured his back on the job. Now, the injured employee will receive full workers’ compensation benefits even though alcohol use was never ruled out.


Travon McCall injured his back while working as a cook-line operator for Sanderson Farms Inc. He willingly stayed on the property another hour and a half after reporting his injury, during which a breath-alcohol technician was called to the scene. McCall’s pain forced him to leave before the technician even arrived, and the company saw his actions as refusal to take the test.

The court had a different view.

Ticking Clock

In the state of Mississippi, when an employee is injured on the job, “the employer shall have the right to administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing.” McCall was working the late shift on May 10, 2014. He was tasked with lifting a forty-pound tub of waste flour, and when he bent down to pick it up, he felt searing pain in his lower back. Quickly, he reported the injury to his supervisor.

McCall, unable to sit due to the pain running down his right leg, waited 20 minutes for the company nurse to arrive and administer a drug test. Unfortunately, McCall was unable to provide a testable urine sample the first time around. The nurse offered him 40 ounces of water to try again, letting him know that he would have up to three hours to produce a sample before the test would be completely unusable.

In the meantime, the breath-alcohol technician was on his way. After an hour and a half had passed, McCall, already frustrated with the failed drug test and the continuing pain, did not want to wait any longer. He walked out of the building, heading straight for the hospital.

The breathalyzer technician arrived shortly after McCall’s departure. His services were not used. Later, the technician billed Sanderson Farms for his time, though the bill did not list an arrival time to the facility on that night.

River Oaks Hospital, a mere two miles down the road from Sanderson Farms, recorded McCall arriving at 12:24 a.m. on May 11. Upon his arrival, McCall was greeted by one of his supervisors who already had the employee’s workers’ comp paperwork ready to sign. The hospital personnel administered a second drug test, which McCall passed. They treated his back injury and sent him on his way.

No breathalyzer test was offered to McCall.

On May 12, 2014, Sanderson Farm terminated McCall’s employment, stating McCall “voluntarily resigned” due to “refusal of drug/alcohol test” and leaving the premises without permission.

An administrative judge ruled McCall’s injuries were compensable. When the employer contested the ruling, the Mississippi Workers’ Compensation Commission reversed the judge’s decision. McCall appealed.

Lack of Substantial Evidence

On August 1, 2017, Sanderson Farms alleged that McCall refused to submit to a drug and alcohol test by leaving the facility. A refusal to a test is reason enough to believe the injured worker was under the influence during the time of injury. However, the Court of Appeals of Mississippi noted, McCall was at the facility for at least an hour and a half following his injury.


Additionally, McCall had signed a statement when he was with the company nurse. It said he agreed to a drug and alcohol test “including but not limited to urine testing or breath analyzing for drugs and alcohol.”

From this, the court decided that “given that an employee supervisor was present at the hospital … and that McCall gave written permission submitting himself to testing, we find that the evidence is insufficient to support an inference that McCall intentionally refused to cooperate with his employer’s requirement that he submit himself to testing for alcohol.”

Further, “McCall remained on the premises and [was] available for alcohol testing for an hour and a half after he reported his injury,” said the court. “Sanderson Farms did not offer him a breathalyzer test during this time.”

The court reversed the Commission’s decision — which the court noted was not supported by substantial evidence.

Cite: McCall v. Sanderson Farms Inc.

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Cyber Resilience

No, Seriously. You Need a Comprehensive Cyber Incident Response Plan Before It’s Too Late.

Awareness of cyber risk is increasing, but some companies may be neglecting to prepare adequate response plans that could save them millions. 
By: | June 1, 2018 • 7 min read

To minimize the financial and reputational damage from a cyber attack, it is absolutely critical that businesses have a cyber incident response plan.

“Sadly, not all yet do,” said David Legassick, head of life sciences, tech and cyber, CNA Hardy.


In the event of a breach, a company must be able to quickly identify and contain the problem, assess the level of impact, communicate internally and externally, recover where possible any lost data or functionality needed to resume business operations and act quickly to manage potential reputational risk.

This can only be achieved with help from the right external experts and the design and practice of a well-honed internal response.

The first step a company must take, said Legassick, is to understand its cyber exposures through asset identification, classification, risk assessment and protection measures, both technological and human.

According to Raf Sanchez, international breach response manager, Beazley, cyber-response plans should be flexible and applicable to a wide range of incidents, “not just a list of consecutive steps.”

They also should bring together key stakeholders and specify end goals.

Jason J. Hogg, CEO, Aon Cyber Solutions

With bad actors becoming increasingly sophisticated and often acting in groups, attack vectors can hit companies from multiple angles simultaneously, meaning a holistic approach is essential, agreed Jason J. Hogg, CEO, Aon Cyber Solutions.

“Collaboration is key — you have to take silos down and work in a cross-functional manner.”

This means assembling a response team including individuals from IT, legal, operations, risk management, HR, finance and the board — each of whom must be well drilled in their responsibilities in the event of a breach.

“You can’t pick your players on the day of the game,” said Hogg. “Response times are critical, so speed and timing are of the essence. You should also have a very clear communication plan to keep the CEO and board of directors informed of recommended courses of action and timing expectations.”

People on the incident response team must have sufficient technical skills and access to critical third parties to be able to make decisions and move to contain incidents fast. Knowledge of the company’s data and network topology is also key, said Legassick.

“Perhaps most important of all,” he added, “is to capture in detail how, when, where and why an incident occurred so there is a feedback loop that ensures each threat makes the cyber defense stronger.”

Cyber insurance can play a key role by providing a range of experts such as forensic analysts to help manage a cyber breach quickly and effectively (as well as PR and legal help). However, the learning process should begin before a breach occurs.

Practice Makes Perfect

“Any incident response plan is only as strong as the practice that goes into it,” explained Mike Peters, vice president, IT, RIMS — who also conducts stress testing through his firm Sentinel Cyber Defense Advisors.


Unless companies have an ethical hacker or certified information security officer on board who can conduct sophisticated simulated attacks, Peters recommended they hire third-party experts to test their networks for weaknesses, remediate these issues and retest again for vulnerabilities that haven’t been patched or have newly appeared.

“You need to plan for every type of threat that’s out there,” he added.

Hogg agreed that bringing third parties in to conduct tests brings “fresh thinking, best practice and cross-pollination of learnings from testing plans across a multitude of industries and enterprises.”

“Collaboration is key — you have to take silos down and work in a cross-functional manner.” — Jason J. Hogg, CEO, Aon Cyber Solutions

Legassick added that companies should test their plans at least annually, updating procedures whenever there is a significant change in business activity, technology or location.

“As companies expand, cyber security is not always front of mind, but new operations and territories all expose a company to new risks.”

For smaller companies that might not have the resources or the expertise to develop an internal cyber response plan from whole cloth, some carriers offer their own cyber risk resources online.

Evan Fenaroli, an underwriting product manager with the Philadelphia Insurance Companies (PHLY), said his company hosts an eRiskHub, which gives PHLY clients a place to start looking for cyber event response answers.

That includes access to a pool of attorneys who can guide company executives in creating a plan.

“It’s something at the highest level that needs to be a priority,” Fenaroli said. For those just getting started, Fenaroli provided a checklist for consideration:

  • Purchase cyber insurance, read the policy and understand its notice requirements.
  • Work with an attorney to develop a cyber event response plan that you can customize to your business.
  • Identify stakeholders within the company who will own the plan and its execution.
  • Find outside forensics experts that the company can call in an emergency.
  • Identify a public relations expert who can be called in the case of an event that could be leaked to the press or otherwise become newsworthy.

“When all of these things fall into place, the outcome is far better in that there isn’t a panic,” said Fenaroli, who, like others, recommends the plan be tested at least annually.

Cyber’s Physical Threat

With the digital and physical worlds converging due to the rise of the Internet of Things, Hogg reminded companies: “You can’t just test in the virtual world — testing physical end-point security is critical too.”


How that testing is communicated to underwriters should also be a key focus, said Rich DePiero, head of cyber, North America, Swiss Re Corporate Solutions.

Don’t just report on what went well; it’s far more believable for an underwriter to hear what didn’t go well, he said.

“If I hear a client say it is perfect and then I look at some of the results of the responses to breaches last year, there is a disconnect. Help us understand what you learned and what you worked out. You want things to fail during these incident response tests, because that is how we learn,” he explained.

“Bringing in these outside firms, detailing what they learned and defining roles and responsibilities in the event of an incident is really the best practice, and we are seeing more and more companies do that.”

Support from the Board

Good cyber protection is built around a combination of process, technology, learning and people. While not every cyber incident needs to be reported to the boardroom, senior management has a key role in creating a culture of planning and risk awareness.

David Legassick, head of life sciences, tech and cyber, CNA Hardy

“Cyber is a boardroom risk. If it is not taken seriously at boardroom level, you are more than likely to suffer a network breach,” Legassick said.

However, getting board buy-in or buy-in from the C-suite is not always easy.

“C-suite executives often put off testing crisis plans as they get in the way of the day job. The irony here is obvious given how disruptive an incident can be,” said Sanchez.

“The C-suite must demonstrate its support for incident response planning and that it expects staff at all levels of the organization to play their part in recovering from serious incidents.”

“What these people need from the board is support,” said Jill Salmon, New York-based vice president, head of cyber/tech/MPL, Berkshire Hathaway Specialty Insurance.

“I don’t know that the information security folks are looking for direction from the board as much as they are looking for support from a resources standpoint and a visibility standpoint.

“They’ve got to be aware of what they need and they need to have the money to be able to build it up to that level,” she said.

Without that support, according to Legassick, failure to empower and encourage the IT team to manage cyber threats holistically through integration with the rest of the organization, particularly risk managers, becomes a common mistake.

He also warned that “blame culture” can prevent staff from escalating problems to management in a timely manner.

Collaboration and Communication

Given that cyber incident response truly is a team effort, it is therefore essential that a culture of collaboration, preparation and practice is embedded from the top down.


One of the biggest tripping points for companies — and an area that has done the most damage from a reputational perspective — is in how quickly and effectively the company communicates to the public in the aftermath of a cyber event.

Salmon said of all the cyber incident response plans she has seen, the companies that have impressed her most are those that have written mock press releases and rehearsed how they are going to respond to the media in the aftermath of an event.

“We have seen so many companies trip up in that regard,” she said. “There have been examples of companies taking too long and then not explaining why it took them so long. It’s like any other crisis — the way that you are communicating it to the public is really important.” &

Antony Ireland is a London-based financial journalist. He can be reached at [email protected] Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]