Tips and info

Drug testing

May 2003

State unemployment agencies vary in how they rule on "drug testing violation" discharges. Several members have been surprised when employees who were terminated for alleged drug usage were granted unemployment benefits by the state agency. There are five points that represent standards used to prove misconduct, and allow an employer the best possible chance of winning a case. The standards are not a guarantee of winning. These five points are:

Reasonable company policy on drug testing

An employer's policy must be "reasonable" & clear. Employees must be made aware of the company policy, either at the time of hire, or through some other communication. It should be communicated in writing and should be signed by the employee.

Reasonable suspicion

An employer must have "reasonable suspicion" of substance usage or impairment on the job to administer a drug test. Random drug testing is not advocated by state unemployment agencies, unless it is mandated by federal guidelines for a particular industry, or if an employee's impaired condition is such that it might result in harm to the employee, co-workers, or the employer's assets. The burden is on the employer to show good cause for administering a drug test.

Chain of custody

Establishing "chain of custody" is essential in proving that the test sample was not contaminated or substituted during the process. Signed documentation or direct testimony from lab personnel is necessary to establish who handled the specimen, how it was handled, what kind of test was administered, and what the results of the test were.

Reliable testing procedures

Labs are often required to be accredited, licensed, or certified as assurance that the drug testing procedures are reliable. The procedure currently deemed most reliable is the Gas Chromatography/Mass Spectrometry (GC/MS) test.

Medical review officer's report (MRO)

The report on the test results may be available to the state unemployment agency at some point during the claim process. Some states require the MRO report at the initial claim level in order to disqualify a claimant from benefits.

For more information on the regulations and policies for drug testing in a particular state, you may contact Maureen Marfell at (800) 358-2163.