Unemployment benefits for alleged drug users raises question

Friday, December 6, 2002

JEFFERSON CITY, Mo. -- While a worker can be fired for allegedly violating a company policy on drug use, that wouldn't necessarily make him ineligible for state unemployment benefits.

However, the number of instances in which an employer challenged benefits for a worker discharged on such grounds and the benefits were granted represented a minuscule 0.19 percent of the 292,554 disputed cases the Missouri Division of Employment Security handled in fiscal year 2001. Of the 1,633 drug-related cases, the division upheld benefits in only one-third, or 550 cases.

An employee fired for "misconduct connected with his work" is ineligible for benefits under state law. However, Missouri courts have narrowly interpreted that phrase as requiring proof of on-the-job substance use to deny benefits. Simply testing positive for drugs in violation of a company policy isn't sufficient.

Pro-business groups such as the Missouri Chamber of Commerce for years have pushed for a stricter law that defines failing a drug test as work-related misconduct and grounds for denying benefits. While acknowledging that 550 cases out of nearly 300,000 may not seem like much, chamber lobbyist Kelly Gillespie said it is still a problem that needs to be addressed.

"Even if one person uses drugs in violation of company policy, the state should not be rewarding that person," Gillespie said.

Gracia Backer, director of the Division of Employment Security, said that "no one supports having employees on drugs" but that the agency is obligated to follow the current law and to give workers the opportunity to tell their side of the story when determining eligibility for benefits.

"It all boils down to due process and fact finding," Backer said.

Issues such as whether the employee was made aware of the drug testing policy in advance and if the test administered was reliable are taken into account.

Often companies who challenge benefits don't follow through, Backer said. According to the Employment Security Division's figures, in 40.5 percent of the drug-related cases that resulted in benefits being awarded, employers failed or refused to provide the agency with requested information.

Another 38.5 percent of such cases involved employees who started work and then were dismissed after the results of pre-employment drug tests were made available. Since the worker wasn't yet on the job when the test was administered, it can't be considered job-related misconduct.

In the remaining 21 percent of cases, the company didn't prove misconduct or impairment.

Companies give up

Gillespie said some companies give up in frustration when pursuing challenges.

"If the state is going to continue to raise the bar on this, employers are going to throw up their hands and say: 'This is too hard to prove; let them draw unemployment,'" Gillespie said.

In a recent case, a Dexter health care provider challenged benefits awarded to a former employee who, pursuant to company hiring practices, asserted he was drug free but later tested positive for drugs.

John Oliver, the Cape Girardeau attorney representing the company, wrote a letter to Republican legislative leaders asking them to look into the issue. Oliver was traveling Thursday and couldn't be reached for comment. Because the company is appealing the decision, division officials said they couldn't discuss the specifics of the case.

Senate President Pro Tem Peter Kinder, R-Cape Girardeau, said he was alarmed by Oliver's letter.

"At the very least, I'm going to circulate this to every member of the House and Senate with a plea for action in the coming legislative session," Kinder said.

Backer said the division this year worked with legislators pursuing the issue to ensure any change would be in compliance with U.S. Department of Labor regulations. The Senate passed a bill to toughen the law last spring, but the measure died in a House committee.

Gillespie said the due process rights of workers accused of violating drug policies should be protected and that supporters would be amenable to including such safeguards in a future bill.

The state's unemployment insurance trust fund is close to insolvent, with Missouri potentially being forced to borrow $134 million from the federal government to keep it afloat.

mpowers@semissourian.com

(573) 635-4608

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