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Unemployment benefits? But he failed a drug test!

Oklahoma Employment Law Letter - August 1, 2009

By Betsy Wood and Josh Solberg

With the economy stagnant at best and in a steady decline at worst, more and more individuals are filing claims for unemployment benefits, which means higher unemployment taxes for you. Accordingly, employers are increasingly challenging employees’ claims for unemployment compensation, citing employee misconduct and ineligibility for benefits. One form of seemingly obvious misconduct is when an employee is terminated for failing a drug or alcohol test.

Although it is sometimes difficult to prove, Oklahoma has specifically established that misconduct includes an employee’s failure of or refusal to take a drug or alcohol test. Nevertheless, employers have seen a significant number of claims for unemployment benefits granted by the Oklahoma Employment Security Commission (OESC) — even when the employee was terminated for failing a drug or alcohol test. Employers are frustrated with the commission and the increased unemployment tax burden, not to mention an unfair gain on the part of the former employee. We want to arm you with the necessary tools to succeed in defeating these claims and ultimately decreasing your unemployment tax costs.


Background
Through the Employment Security Act of 1980 (40 Okla. Stat. 2001 §§ 1-101, et seq.), Oklahoma developed a program providing unemployment benefits to eligible individuals. According to the state legislature, “economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state.”

However, the program is not without its limits, and not every individual qualifies. Under the Act, “an individual shall be disqualified for benefits if he has been discharged for misconduct connected to his last work, if so found by the Commission.” The only action explicitly identified by the Act as “misconduct” is an employee’s failure of or refusal to undergo a drug or alcohol test.

The Act is clear: “An employee discharged on the basis of a refusal to undergo drug or alcohol testing or a confirmed 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.”

Despite this seemingly straightforward language, employers have seen more and more claims for unemployment benefits granted to employees who were terminated for failing a drug or alcohol test. Accordingly, more and more employers have been asking what they have to do to win the battle against an employee’s award of unemployment benefits when he was terminated for failing a drug or alcohol test.


How employees win benefits after failing a drug test
The answer lies in a regulation that the OESC applies in an extremely rigid fashion. The regulation, found in Oklahoma Administrative Code Section 240:10-3-45, states that the drug or alcohol test of an unemployment insurance claimant must be conducted in accordance with the Standards for Workplace Drug and Alcohol Testing Act. To prove compliance, you must produce:

  1. documentation of a positive test result issued by the testing facility that performed the test;
  2. documentation of the chain of custody of the testing sample from the point of collection to the testing facility;
  3. the medical review officer’s certification of proper testing standards and procedures;
  4. a statement concerning the circumstances, as set out in 40 O.S. § 554, under which the testing was requested or required;
  5. a copy of your drug testing policy (as required by 40 O.S. § 555);
  6. documentation showing that you provide an employee assistance program (as required by 40 O.S. § 561); and
  7. any evidence relevant to the adjudication of questions of fact or law regarding drug or alcohol testing that may be an issue in the claim for unemployment benefits.

To deny unemployment benefits to an employee who has been terminated for failing a drug or alcohol test, you must provide all of the documentation Section 240:10-3-45 requires. Further, OESC hearing officers may require you to authenticate the documents and provide live testimony.

Providing and authenticating the seven items set out in Section 240:10-3-45 doesn’t guarantee the OESC’s denial of unemployment benefits to the employee. It does, however, place you in the best position to argue why benefits should be denied and goes a long way toward ensuring your unemployment taxes will remain at the lowest rate possible.


Recap
To combat the rising costs of unemployment taxes, you should seek to deny unemployment benefits to ineligible employees, including individuals who have failed a drug or alcohol test. To do that, you must be prepared to provide the seven items set out in Section 240:10-3-45.

Failure to heed the requirements of Section 240:10-3-45 will continue to result in frustration and increased unemployment taxes.