I am so mad right now, someone please tell me if this is legal in NY

My sister got hurt at work today. She stepped off a walkway and into a pothole. She bent her ankle and said it felt like something broke although there’s no swelling or bruising. She is in a lot of pain.

She filled out an accident report and was told that she could go to the hospital BUT

  1. She has to have a drug test (this I understand).
  2. She will have to stay out of work for 3 days while she waits for the drug test results.
  3. They will not pay her while she’s out of work.

Now, she’s not worried about the drug test but she can’t afford to be without pay.
She got hurt because they haven’t filled a pothole on their property and they’re basically telling her she’s being punished because she stepped in their hole. How can they keep her out of work without pay because they have unsafe conditions?

So, she didn’t go to the hospital and now she’s at home and in a lot of pain.
Is their policy legal?

Oh and apparently most people don’t even bother reporting their work injuries any more because of this. The only reason my sister reported her tendinitis was because it was repetitive stress and didn’t require a drug test. But, how many people have been screwed over because of unsafe conditions and the need for a paycheck?

Step one is to get the official info from the New York Workers’ Compensation Board. From there, you (or she) can find phone numbers to call the WCB and ask about the employer’s policy.

There’s no mention of drug tests, but she does need to give the employer written notice of the accident and to fill out and submit a form C-3 The C-3 can be entered online.

Hopefully, it all goes well for her. Workers’ comp systems do tend to be a bit baroque and not particularly friendly to the people they purport to help. Having been through it myself, I think the California system was the inspiration for Alice in Wonderland.

According to wiki

so talking to one of them ought to sort out this issue for her.

She did fill out the accident report form immediately. The safety lady gave her ice packs and an ACE bandage. She also told her that she can still go to the doctor tomorrow if she changes her mind.

I actually have a worker’s comp lawyer so I’ll just tell her to call him. Actually, I need to call him anyway so I can just ask him for her and pass the answer along.

Putting aside the legality – three days for a drug test? I just got tapped last week at random for one and proceeded to pee in a cup with some sort of built-in tester and was told immediately that I was fine – presumably if anything had come up positive on the cup, they’d have done a more detailed test of some kind. Three days? That’s bullshit.

Good luck to her. Sounds like a deeply unpleasant situation.

I was trying to ignore that part of the stupidity. Funny, when they KNOW someone is on drugs and they send them for a mandatory drug test, they always get the answer and fire them the same day.

WOW, what bullshit. Please keep us updated on what happens!

Threads asking advice on specific legal matters go in IMHO.

General Questions Moderator

Thanks for moving me to the right spot. I seem to have a mental block on that one.

Usually workers’ compensation has an elimination period; in most states, you don’t get paid for the first week of lost wages.

However, there is no particular reason drug test results should take three days. I don’t know of a lab in this area with a typical turnaround of more than 24 hours.

IANAL, this is not legal advice, take your vitamins.

Yes doctor.


Man, that is f-----!

Please, let us know what happens!

My husband (the construction safety officer) says, assuming NY worker’s comp laws are similar to ours, Worker’s Compensation should pay her back for the three days of work (and bill her company). If the company takes enough Worker’s Comp. hits like this, their premiums will go up; he suspects that this is a scare tactic on the part of the company to try to keep workers from reporting injuries on the job to Worker’s Comp. She needs to hold their feet to the fire, in my opinion, by reporting the injury to her employer and Worker’s Comp.

When my sister and I each went out for surgery for work injuries, we were told that the first 7 days are not paid UNLESS you are out for longer than XX days (I don’t remember how many days).

The reason I have an issue with this is that there’s no point in her missing any work at all! She hurt herself right at the end of her shift. She could have gone to the hospital then and then been back at work in the morning with no time missed. All her company would have to pay for is the hospital bill and the drug test. She works at a desk. Even if her ankle is broken, it’s unlikely that it would stop her from doing her job.

They have this stupid policy because there are a lot of drug users in the company and they know that even in the case of a valid work injury, most people will opt out of reporting because they know they’ll fail the drug test. Because of this, my sister is being punished simply because she’s poor and can’t afford to miss 3 days of work. She stepped in a hole that they should have fixed and she did it IN FRONT of a surveillance camera but even if it’s just a mild sprain, she loses out on 3 days pay if she goes to the doctor.

You can complain about their practices to the Worker’s Compensation Board. Practices structured to discourage people from filing valid claims are, generally speaking, a no-no.

The Advocate for Injured Workers can be reached at 1-800-580-6665

I dunno about New York, but pretty much YES, it’s legal.

In Minnesota, you have to be out of work for 3 days before Workman’s Comp kicks in.
And a LOT of companies (primarily those involving physical labor) will immediately require you to take a drug test if you should have an accident on the job.

Of course, and IANAL, she may be able to file a small claims case against them for lost wages and medical bills. Most companies I have worked for would immediately go “oh shit, this is our fault and she might sue us, so let’s cover our asses right now!”

I appreciate the responses guys.

The issue isn’t whether or not she’s entitled to be out of work and get paid for it.
The only issue is whether or not it’s legal for an employer to discourage employees from going to the doctor AT ALL by making them stay out of work for 3 days.
Unless a doctor tells her to stay out of work to heal, there’s no reason for her to miss any work at all.

Hello Again Since she’s at work and can’t call, I called the number you gave. The lady I talked to said she’s not even sure it would fall under their jurisdiction since it’s a drug test policy. I made it clear that my concern is not whether or not she has to take one, it’s whether or not they’re allowed to use drug testing as a way to keep people from going to the doctor when they’re hurt on company property. She is going to ask someone else and call me back.

Since she works at a desk job and this injury won’t cause her to be unable to do her job, would she even be elligible for worker’s comp?

As it seems to me, her only recourse for getting her employers to pay for anything would be to go to the doctor and then send them the bill. When they don’t pay (and they won’t) she would have to sue them. Probably not the best plan if she wants to remain working there for very long.

Has she taken pictures of the pothole yet?

It really works the other way around. If you want your medical care paid for by the employer and/or its insurance carrier, you get the employer to authorize it. If you haven’t made a good faith effort to get medical care through the employer, the employer will be within its rights to deny any unauthorized care.

Are you sure she isn’t misunderstanding their instructions? It’s normal practice to require a drug test, but usually the primary care provider will perform the drug test. That is, if they send her to the ER, she’ll be tested there, in the course of receiving medical care.

IIRC, Worker’s Comp is a no-fault insurance system to compensate people for any injury received at work. It’s not about whether she is unable to do her job per se. If she was at the grocery store on her own time and stepped in the pothole, she could sue the store for her medical bills, pain & suffering, and time she lost from work. Worker’s Comp allows recovery without suing, with the tradeoff that compensation is lower than what you might be able to get by going through the courts.

States may vary and this is not legal advice. Just dim recollections from law school.