December 2016 Briefly: An Unemployment Case Analysis
The claimant was discharged after failing a post-accident drug test. She was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge.
At the Hearing
The Employer’s Evidence: The employer testified that the claimant had fallen on the job. The next day, she went to the hospital to be treated. Four days after the claimant’s fall, the employer took her to a facility to perform a drug test. The employer’s policy (which the claimant received at hire) provided that in the event of an accident on the job, employees will be drug tested, and faced disciplinary action up to termination in the event of a positive result. The claimant’s specimen returned as positive for amphetamines, and the claimant was discharged. The employer’s policy, the claimant’s acknowledgement of policy, the MRO report, and the final results including test levels were presented as evidence to comply with state rules.
The Claimant’s Evidence: The claimant testified that she had fallen in front of the employer’s facility as she was attempting to avoid a collision with a customer. The next day, she realized she needed medical attention and went to the hospital. Four days after her fall, the employer picked her up at home and drove her to the testing facility. The claimant testified that she told the testing facility that she had been prescribed oxycodone for pain related to the fall, and was taking Sudafed for a sinus infection. Despite that information, the drug test came back as positive and the claimant was discharged.
The Hearing Decision
The Administrative Law Judge found that the claimant was discharged for misconduct connected with the work and the claimant was disqualified from benefits. The employer proved, by submitting all documentation required by state rules, that the claimant had tested positive for amphetamines in violation of the employer’s drug policy. The claimant disagreed and appealed, arguing that her actions were not misconduct because she had been taking Sudafed, which she argued could come back as positive for amphetamines, therefore the employer failed to prove she violated the employer’s policy.
The Board of Review Decision
The Board of Review reversed the Administrative Law Judge’s decision and the claimant was allowed benefits. The employer presented a drug testing policy providing for post-accident drug testing. However, the employer failed to test the claimant immediately and waited four days to do so. The employer was therefore unable to prove that the accident was caused by drug use, and was therefore unable to prove that the claimant’s discharge was for misconduct connected with the work.
- Positive post-accident drug tests can result in a finding of misconduct if all required elements are proven. Drug testing cases can be very difficult to prepare for and win due to wide and varied state rules regarding what evidence needs to be presented to prove misconduct.* In this state, the employer was required to submit specific documentation to prove its case. Equifax Workforce Solutions Unemployment Consultants and Hearing Representatives are well-versed in state rules regarding these separations and are invaluable resources when preparing for and participating in these hearings. *Please contact your unemployment consultants with questions about your state.
- A delay between an accident and a required post-accident drug test can result in an award of benefits to a claimant. Post-accident drug testing is generally done to determine if a work-related accident was or could have been caused by intoxication on the job. Not performing a post-accident test immediately could prevent a finding of misconduct. Some substances can appear in test results long after the drug was ingested. It would be extremely difficult to prove that any substances for which the employee’s test returned as positive were taken prior to the accident and could have caused the accident itself. If the employer is unable to prove the accident was caused by prohibited drug use, the state could allow benefits.
To learn how Equifax can help your organization with unemployment claims management, contact Pete Krieshok at pete.krieshok@Equifax.com.
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