Copies of Hearing Tests

Sunny · October 2002

I thought I'd seen everything. We recently terminated an employee for refusing to take a drug test following a forklift accident (property damage but no injury.) This individual had previously undergone audiometric testing as part of our yearly program. His results were strange - and our provider advised me to have him retested since his test results could only be valid if he had a tire blow up in his face ten minutes before the test. (In other words she thought he was faking.) The retest provider indicated on her report that the test results had very little validity. She told me on the phone that she was relatively certain he was faking. Now this employee is demanding copies of his hearing tests. Obviously he is planning to sue based on hearing loss. He had been in attendance trouble for some time before his termination. Do we have to supply him with the test results?

Mike · October 2002

Doesn't look like anyone has an answer for you on this one.

The employee can file a claim regardless of whether or not he as a copy of the hearing test results. Once he files the claim you will more than likely have to provide a copy to him, his attorney, and the agency through which he files his claims.

The strength of you case lies in the opinions of two audiometric testers that it is very apparent, based on the results, that this employee did not complete the test in good faith.

Does you state law require you to provide copies of personnel / medical records to employees who ask for it? If it does, then I would give him copies and prepare to defend the charge / workers' comp claim.

Don D · October 2002

Unless required by your state's law, I would not provide him with anything. When (if) you get a letter from his attorney or an agency, I would respond by outlining my reason for terminating him which was refusal to take the drug test, enclose a copy of the policy and state that there is absolutely no flexibility in the application of that policy. I think once you unload this firmly on his attorney or the agency, you might hear no more of it. Even in the event you might have to ultimately produce a copy of some test, there is no evidence to support his contention that you fired him for that. There's much bright sunlight shining already on the real reason that you did fire him. No one can reasonably conclude that he was fired for failing a test unless in the absence of any other reason given for his termination.

RosiePHR · October 2002

As long as your company paid for the tests, then they are company property and he can make his demands to the wind. Unless the tests are supoenaed, barring state law, you don't have to turn them over to him nor his attorney no matter how much they "demand."

Meg · October 2002

Sunny,
It looks as if everyone has provided you with some good ideas. PLease let us know how this one turns out. Hhopefully I won't have this come up but, you never know

Good luck.

Sunny · October 2002

Thanks everyone - I was beginning to feel ignored x:'( Alabama does not require that we give employees copies. I will update when we hear from his attorney.

awilliams · October 2002

I just could not resist adding a war story about faking test results (goodness, am I turning into Don D?). I once represented the employer in a case where an employee claimed that due to the persistent harassment by his supervisor he was sent into a serious depression. He was a psychiatrist himself, but we sent him to our expert to be tested. The expert performed many tests on him, and the results came back that a person in a coma would have faired better! This is because due to the law of averages and it being a multiple choice test, some people would get the right answer once in a while, whereas this guy missed every single question. So, because he thought he knew a thing or two about psychology, he incorrectly answered every question - but it backfired because it proved that he was completely faking! Isn't it amazing what some employees will try to do?

Don D · October 2002

Almost forgot my other war story. During contract negotiations in February, the union negotiation team wanted to add 'close cousins' to the list of immediate family members. The matter was dispensed with when they could offer no definition as to what in the world that means. But, it was fun imagining the possibilities.

hrqueen · October 2002

You might want to consider OSHA's standard pertaining to Access to Employee Exposure and Medical Records, i.e. OSHA 29 CFR 1910.1020. This regulation provides the employee or employee's designated representative access to exposure and medical records. You mentioned forklift trucks, so I assume you fall under OSHA's jurisdiction.

Sunny · October 2002

We are subject to OSHA rules - the reason for the tests to begin with. On the advice of our labor attorney I sent the hearing test results to the ex-employee. Our attorney felt that if he took them to an attorney he would be discouraged from suit. I think our attorney is optimistic but I also thought it better that we not seem to be hiding the information from the employee. I sent them today - we'll see.

cebudragonlady · October 2002

I think it would have been wise for the employee to have been taken to an ear MD specialist, not just an audiologist. What bothers me here is that people seem to think the guy was faking it. I can tell you from personal experience that hearing ability can suddenly turn off like a switch, and then back on again, and more than once, and for varying lengths of time. The very FIRST time it happens, I panicked. Perhaps this is what happened with this employee..while he was driving the forklift - and then there was an accident, and it happened agin while he was taking the test. For a brief time, this employee suffered a
disability - and was terminated....

Copies of Hearing Tests

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