The Employer's Legal Resource: Protecting Your Ability to Defeat Unemployment Claims by Employees Who Fail Drug or Alcohol Tests
In our February 2012 ELR, we discussed some changes to the law which made it very difficult for an employer to contest unemployment claims on the basis of positive drug or alcohol test results. At that time, we learned that there were efforts underway to change the newly-passed law. Well, it paid off. The new law makes it easier for employers to defeat claims for unemployment compensation by employees discharged for failing drug or alcohol tests conducted in accordance with state law. (Please note that this does not affect discharges which may occur when an employee fails a federally mandated drug or alcohol test.)
The new law regarding when an employer contests unemployment on the basis of a positive drug or alcohol test is as follows:
An employee discharged on the basis of a refusal to undergo drug or alcohol testing or a positive drug or alcohol test conducted in accordance with the provisions of the Standards for Workplace Drug and Alcohol Testing Act shall be considered to have been discharged for misconduct and shall be disqualified for benefits pursuant to the provisions of Section 2-406 of this title.
In any challenge to a positive drug or alcohol test, the claimant has the burden to prove a breach in the chain of custody. The employer must provide the chain of custody documentation at the request of any claimant challenging his or her test result.
When the claimant fails to request a confirmation test pursuant to Section 556 of this title, the claimant shall not be eligible for benefits.
In any claim brought by the discharged employee for compensation, a written report of the drug or alcohol test results shall be accepted as prima facie evidence of the administration and results of the drug or alcohol test. If challenged by the claimant as provided in paragraph 2 of subsection A of this section, the written report of the drug or alcohol test results shall be acceptable for presentation as evidence with the chain of custody of the sample properly documented.
Okla. Stat. tit. 40, § 2.406.1.
This new law places most of the burdens on the employee seeking to be awarded unemployment compensation. However, the employer "must" provide chain of custody documentation if requested by the employee. So, the big take-away for employers is to ensure that you, or the service provider you use, are taking care to document and preserve the chain of custody forms. If called upon to produce a chain of custody and you cannot produce it, it seems likely that you will be paying unemployment compensation.
By Kristen L. Brightmire, firstname.lastname@example.org