Jikku JohnBy: Jikku JohnLegal Counsel to Commissioner Joe Esparza

While many employers have drug-free workplace policies, they are often shocked to learn that even with a drug testing policy, and a positive test result, they can still lose an unemployment claim based on the claimant’s sworn denial of drug use. So, how does an employer overcome this? A well-established precedent case explains that to overcome a sworn denial of drug use, an employer must meet five factors. See: Appeal No. 97-003744-10-040997 (MC 485.46)  Unemployment Benefits – Appeals Policy & Precedent Manual – Texas Workforce Commission.

Factor 1: A policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant.

Employers should implement drug policies specifying that the company will conduct drug testing and/or alcohol testing under certain circumstances, such as pre-employment, at random, post-accident, etc. For the purpose of complying with this first factor, an employer’s drug-free workplace policy should also prohibit a positive test result. Please see a sample drug and alcohol policy; https://efte.twc.texas.gov/drug_free_workplace_policy.htmlSimilarly, employers should notify employees that violation of the policy could subject them to disciplinary action, including termination of employment.

Employers should have employees acknowledge receipt or review of the policy. If employees are not aware of the policy, then violation of the policy will not be misconduct connected with the work.

Factor 2: Evidence to establish that the claimant has consented to drug testing under the policy.

In addition to a drug-free workplace policy, employers should also have employees sign a consent for drug testing which explains that the employee agrees to submit to a drug or alcohol test and to furnish a sample for analysis upon request. Please see a sample consent form; https://efte.twc.texas.gov/drug_and_or_alcohol_testing_consent_form.html.

Factor 3: Documentation to establish that the chain of custody of the claimant’s sample was maintained.

Illustration of drug testingThis element is essential for maintaining the integrity of the claimant’s sample. While most drug testing labs have policies and procedures on-site for employers to meet this element, an employer’s failure to comply could lead to the employer losing an unemployment claim. An example is an employer who takes samples from its employees at the jobsite and stores them on the employer’s premises until the employer can transport them to the drug testing facility. If employers do not have a strict chain of custody procedure in place, claimants can attack the integrity of an employer’s drug testing procedure and can overcome a positive drug test result through their sworn denial.

Factor 4: Documentation from a drug testing laboratory to establish that the test was confirmed by the Gas Chromatography/ Mass Spectrometry (GC/MS) method.

The GC/MS method uses gas chromatography and mass spectrometry to detect the presence of drugs in a person’s system. Often known as the gold standard for confirmatory testing, this method can detect trace quantities of a substance, and can confirm the presence of a specific drug in a person’s system. If the employer is using a positive drug test as the reason for a discharge, the employer should ensure that the drug testing lab it chooses will confirm the results using the GC/MS method. For exceptions relating to DOT-related cases, please see. Case No. 1051204 Unemployment Benefits – Appeals Policy & Precedent Manual – Texas Workforce Commission

Factor 5: Documentation of the test expressed in terms of a positive result above a stated threshold.

Employers should maintain clear documentation to show not only that the claimant tested positive, but also that the claimant exceeded a threshold amount of the substance for a positive result. Compliance with this element not only strengthens the test results, but also helps overcome assertions from the claimant that they were not under the influence of that substance while at work.

Conclusion

Through the fulfillment of these five elements in support of a positive drug test, an employer is likely to overcome a claimant’s sworn denial of drug use. Conversely, an employer who fails to follow the elements risks losing an otherwise winnable unemployment claim.

 

-from Texas Business Today – January 2024 email