Total Tax
October 2010
Substance Abuse Testing and UI Eligibility
Although company drug and alcohol testing policies are seemingly commonplace, interpreting and applying state testing and benefit eligibility laws can be quite complicated.
At issue is establishing a balance between an employer’s desire for a drug-free and efficient work environment and a worker’s right to privacy and freedom from unreasonable search and seizure. With regard to unemployment claims, employers must understand the laws when arguing misconduct due to a positive drug or alcohol test result.
There are five primary points that state unemployment agencies most commonly consider when making a decision about benefit eligibility:
- the employer has a reasonable company policy or bargaining agreement on drug/alcohol tests
- the policy outlines causes for testing and potential outcomes for policy violation
- testing was performed within the scope of the policy (e.g., for random, for cause)
- testing was performed in a controlled setting
- results are reliable and can withstand scrutiny under state or federal regulations
Company Procedures
In testing cases, the employer must show when and how employees were made aware of the testing policy and details about the policy itself, such as what is considered a violation, which employees are covered, and what disciplinary action may result. Unless testing is required by statute, licensing, or government regulation for safety-sensitive occupations, a number of states require that an employer show reasonable suspicion for administering testing or demonstrate a legitimate business reason for doing so. If neither is present, an employer may have to detail how a worker was selected for testing. Generally, states do not advocate random testing outside of safety-related positions. Additionally, states may rule that worker’s consent to random testing as a condition of employment is involuntary, invalid, and violates privacy rights. Remember, if your employees are members of a union, the conditions, as well as consent for drug and alcohol testing, are most likely also part of the labor contract.
An employer must be prepared to describe the test and how it was conducted in order to show that the integrity of the tested sample remained intact (the “chain of custody” was maintained), and that confidentiality was preserved.
Common Reasons for Testing
- Pre-employment Test: An individual is required to provide a specimen during the job application process. Generally, a negative drug result is required before an employer may offer employment to an individual.
- Random Test: An employer selects, using a truly random selection process, one or more individuals from all the employees included in the employer’s workplace drug testing program. A random selection process precludes an employer from attempting to pre-select a particular employee for a drug test.
- Reasonable Suspicion/Cause Test: An employee is required to provide a specimen when there is sufficient evidence to indicate that the employee may have used an illicit substance. Typically, the evidence is based on the direct observations made by supervisors or co-workers that an employee has used or possesses an illicit substance, exhibits physical symptoms of being under the influence, or has patterns of abnormal or erratic behavior.
- Post-accident Test: An employee is required to provide a specimen after being involved in an accident or incident on the job. The results of such a test may provide evidence as to the cause of the accident or incident.
- Return to Duty Test: An employee is required to provide a specimen to ensure that the employee is drug-free before being allowed to return to work after a leave-of-absence or suspension.
- Follow-up Test: An employee is tested at random intervals after returning to work to ensure that the employee remains drug-free.
Drug testing labs should be accredited or licensed as assurance that the chain of custody prevents interference with or substitution of the sample. In addition, the testing procedure deemed most reliable is Gas Chromatography/Mass Spectrometry (GC/MS), and it is often required as a confirmation test if another method such as the Enzyme Multiple Immunoassay Test (EMIT) is initially administered and the result is positive. More information about testing can be found on the Department of Health and Human Services Web site at http://workplace.samhsa.gov.
The following items are essential in unemployment cases where drug testing is an issue:
- signed employee acknowledgement of company policy
- copy of the test results and type of test performed
- copy of complete chain of custody of the sample
- accredited lab that is willing to provide testimony at an unemployment hearing
ADP-UCS can help with information on a specific claim matter and should be contacted if you have questions about complete requirements in a particular state.
Legislative Highlights
2010 Unemployment Insurance (UI) Reform Bill S.290
Vermont
Senate Bill 290 was adopted on May 12, 2010, and impacts both employers and unemployment insurance (UI) claimants because a comprehensive solution was needed to bring the UI trust fund to solvency. Failure of the legislature to act this year would have resulted in $163 million in federal loans by the end of 2011. Unpaid federal loans could result in additional employer taxes through special assessments and/or a reduction in the FUTA credit for Vermont employers. The major highlights of this bill are as follows:
- Increases the taxable wage base from $10K to $13K in 2011 and to $16K in 2012
- Increases the employer penalties for failure to file timely reports from $35 to $100
- Assesses employer $5K fine for misclassifying employees
- Provides that an employer’s account will remain charged for overpaid unemployment benefits if the overpayment resulted from the employer’s failure to respond to requested forms that determine workers eligibility and benefits are later rescinded for whatever reason
- Freezes the maximum weekly benefit amount at $425 until the UI trust fund balance is positive
- Expands the maximum penalty weeks from 12 to 15 where a claimant is denied benefits for misconduct
- Prohibits a claimant from collecting unemployment benefits during weeks when severance pay is received
Additional provisions of this bill and specific effective dates can be found at http://www.labor.vermont.gov/Portals/0/UI/reform%20s290%20snap%20shot.pdf.
States Redefine Misconduct
New Jersey
New Jersey Senate Bill 1813 was signed into law on July 2, 2010, and increases the number of weeks a claimant is disqualified for misconduct from five to seven weeks. R.S.43:21-5 (b), the definition of misconduct was also revised and amended to read:
- An individual shall be disqualified for benefits: For the week in which the individual has been suspended or discharged for severe misconduct connected with the work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual’s weekly benefit rate, as determined in each case. Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer’s rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
New Hampshire
In New Hampshire, similar legislation (HB 1168) clarifying the definition of gross misconduct for purposes of unemployment compensation was adopted on July 8, 2010. The new definition of gross misconduct in New Hampshire is as follows:
- 282-A:35 Gross Misconduct. An unemployed individual who has been discharged for arson, sabotage, felony, assault which causes bodily injury, criminal threatening, or theft of an amount greater than $500, where such conduct is connected with his or her work, shall suffer the loss of all wage credits earned prior to the date of such dismissal.
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Unemployment Compensation Services Update is a quarterly update for ADP’s Total Tax clients to address the issues of employee personnel practices, state unemployment tax, and payroll tax filing matters. This publication is distributed with the understanding that the publisher is not engaged in the practice of law. If legal issues arise in the context of your business, independent legal counsel should be consulted.
Submit unemployment-related documents, including your company payroll code, company name, and contact telephone number on all correspondence to:
Automatic Data Processing, Inc., Total Tax Department, P.O. Box 6000, San Dimas, California 91773-9060
Hotline Number: (800) 959-6246
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