Here is what we thought we knew. Under Oklahoma law, refusing to submit to a drug or alcohol test or testing positive is “misconduct” which disqualifies a person from receiving unemployment benefits.

Here is what we did not know. It may be impossible under the Oklahoma Employment Security Commission’s current interpretation of the law to ever prove that.

As you may recall, amendments to the Standards for Workplace Drug and Alcohol Testing Act (SWDAT) went into effect November 1, 2011. The new law provides that:

An employee discharged on the basis of a refusal to undergo drug or alcohol testing or a positive drug or alcohol test shall be considered to have been discharged for misconduct for purposes of unemployment compensation benefits as provided for [in the unemployment laws]. In order to prove misconduct, the employer need only provide proof of a testing policy and either a refusal to take a drug or alcohol test or a positive test result.

Seems simple enough, right? Not so.

In another amendment to the SWDAT, the Oklahoma Legislature addressed the confidentiality of those testing records. That section reads:

An employer shall not release such records to any person other than the applicant, employee or the employer’s review officer, unless the applicant or employee, in writing following receipt of the test results, has expressly granted permission for the employer to release such records in order to comply with a valid judicial or administrative order.

The Oklahoma Employment Security Commission (OESC) takes the position that it will NOT consider any test results provided by an employer without the express, voluntary written consent of the person seeking unemployment benefits.

As has been described, the process the OESC will follow is this:

Step One. Employer raises the issue in its response to the claim.

Step Two. The OESC will mail a release to the Claimant with a cover letter asking whether s/he wants to release the drug/alcohol testing results to be considered in the claim for unemployment.

Step Three.

If the employee signs the release, the OESC will issue a subpoena to the employer for the results which can then be considered.

If the employee does not sign the release, the OESC will not consider the test results – even if you mail them in anyway.

No, we are not making this up. Unless the person you fired for failing the drug or alcohol test signs a written release for those test results, it is the OESC’s position that they cannot consider those results in determining whether the employee has been discharged for misconduct.

We are advised that the OESC is working with the Oklahoma Legislature to amend the law to allow employers to disclose the test results to the Commission. In the meantime, you must develop evidence of misconduct other than the actual test results if you hope to avoid paying unemployment benefits under these circumstances.

We will keep you apprised.

By Kristen L. Brightmire, kbrightmire@dsda.com