If you fire an employee because you say she was “high” on drugs, you may still have to pay unemployment claims. You must prove five facts to establish misconduct in an unemployment claims case. Without these five elements, you are not likely to overcome the claimant’s sworn denial of drug use because legally, she is her own best witness.
You must present: 1) your policy prohibiting a positive drug test result, receipt of which is acknowledged by the employee; 2) evidence showing the employee consented to drug testing under the policy; 3) documentation establishing the chain of custody of the employee’s sample was maintained; 4) documentation from the testing laboratory to establish that an initial test is confirmed by the GC/MS method; and 5) documentation of a positive test result above a stated test threshold.
All this requires your work up front to develop a drug-free workplace policy. The payoff in protecting your business from additional unemployment taxes, or legal action, makes it worthwhile. You can find an in-depth explanation and help in writing such a policy in The A to Z of Personnel Policies, Especially for Texas Employers.
Employer: She drove that forklift straight into the wall. She was high as a kite! With that kind of craziness too many people could get hurt, herself included.I had to fire her.
Unemployment Hearing Officer: Do you have a stated drug policy prohibiting employees from working under the influence of drugs if this adversely affects their work performance and safety and others’ safety? Has Ms. XYZ signed that she received and understood this policy?
Employer: No, but common sense tells you not to drive a forklift stoned!
Ms ABC: I wasn’t high, I was sick! It came over me all of a sudden and everything went black.
Employer: You had one miraculous recovery because you didn’t even fall off! Then you started laughing!
Ms. ABC: I was hysterical and sick; I wasn’t thinking right.
Employer: Yeah, you couldn’t think right because you were too high to think at all.
Unemployment Hearing Officer: Did you ask Ms. ABC to take a drug test? Do you have documented proof that she was under the influence of drugs?
Employer: I didn’t need a test to tell me she was high. My smashed wall proves it.
Ms. ABC: I didn’t take any drugs! I was trying to do right by working even when I didn’t feel good since we were shorthanded.
Sorry, crazy behavior and broken bricks don’t prove drug use. Ms. ABC is drawing unemployment checks.
Don’t pay additional unemployment tax when termination is justified because you weren’t prepared!
Cally Graves is an Industry Liaison between business, workforce, and education working with Workforce Solutions. She has 35 years of experience in workforce development, primarily working with employers in Houston, Texas and the Gulf Coast region.