Last updated: November 30, 2020
When an employer fires an employee because they’ve failed a company drug test, the employee may file for unemployment benefits. Hopefully, that’s only because they never bothered to read your drug-free workplace policy. It should clearly state that won’t be an option.
If it doesn’t, revise it.
Drug abuse falls under misconduct and is, therefore, a violation of a drug-free policy. Any employee who would try to file for unemployment benefits would be denied.
That makes good sense. What about employees who get let go for other reasons though? Can former employers require a drug test?
Government officials can’t agree
The answer to that question can get iffy because it’s a topic that legislators can’t agree on. It’s important to check with the laws in your state because they vary.
- Some states allow former employers to drug test former employees who are claiming benefits but don’t require it. Those states are Mississippi, Texas, and Wisconsin.
- Other states forbid drug testing of former employees.
- There are states that don’t allow the former employee to claim benefits when they’ve tested positive for drugs, but only for a set amount of time.
- Your state may allow former employees who tested positive to claim benefits but only if their drug use has been “cleared”—as in they have a medical marijuana card or the drugs were prescribed by a doctor.
Congress passed a bill allowing states to drug test employees who were fired because they tested positive for drugs while collecting unemployment benefits. That doesn’t sit well with the Department of Labor (DOL) though.
The DOL says drug testing former employees who were fired for drug abuse implies that these individuals are making bad decisions. The DOL maintains that isn’t fair because it places a stigma on them that is hard to shake.
The bill passed by Congress and implemented in 2016 is under fire from the DOL to this day.
How employers see it
Society for Human Resource Management (SHRM) statistics show that 57% of employers drug test all job candidates and that 36% of them perform other types of employee drug testing.
They can fall under the following categories.
Random drug testing
A percentage of employees are randomly chosen to submit to drug testing periodically throughout the year. Employers using this “element of surprise” drug test deters drug use. The majority of employees won’t risk using drugs and then coming up for the random test.
On the flip side, random drug testing allows employers to identify employees who have a substance abuse problem and are impaired on the job.
Reasonable suspicion drug testing
There are two elementary purposes for including reasonable suspicion testing in your drug-free policy.
- Reduce or eliminate the risk of liability
- To avoid accidents and foster a safety-first workplace
Management personnel should receive on-going training so they will be able to detect signs of drug impairment. It will also keep them aware of the documented process that they are to follow.
Post-accident drug testing
Employers need to know if drugs or alcohol were involved when a workplace accident occurs. It is a big component in determining where responsibility lies.
Employers often reserve the use of blood testing for these situations because they detect current impairment. They don’t identify them for long periods of time though so it’s important to have a post-accident drug test conducted as soon as possible.
Probation drug testing
After an employee successfully completes a drug rehabilitation program, employers randomly schedule probationary drug tests for a predetermined amount of time.
All safety-sensitive employees must submit to them to return to work after successfully completing the return-to-duty process. The employee’s substance abuse professional (SAP) determines the probationary test schedule.
Employers of the general workforce are free to include a probationary drug test in their drug-free policies as well.
DOT says no way
If a safety-sensitive employee fails a drug test, the Department of Transportation (DOT) bans them from receiving unemployment benefits. Simply put, their misconduct has literally put countless lives at risk of serious injury or death.
In addition to being banned from collecting unemployment, the employee’s drug violation is submitted to the Federal Motor Carrier Safety Administration Clearinghouse. The employee’s violation won’t be cleared until they have completed the return to duty program that is put in place for them.
They are unable to seek employment as a driver until the violation has been removed.
The FMCSA Clearinghouse is a nationwide database. Employers submit requests on all new hires looking for drug and alcohol violations in real-time. The database makes it impossible for dishonest drivers to avoid listing an employer who has information to pass on about a violation.
It also makes it impossible for drivers to just pack up and move to a different state where they apply for a new commercial driver’s license (CDL) and “start fresh.”
It’s unknown whether drug testing everyone who files for unemployment will ever be accepted nationwide. The right to privacy issue alone could hold off a decision on that for years to come.
In the meantime, employers will continue to drug test their employees for safety’s sake. Drug impairment puts the user and everyone around them at a higher risk of being involved in an accident.
Furthermore, if an employee tests positive for drugs, it gives you an opportunity to intervene. Even though the odds are that your drug-free policy includes termination, a few kind words showing your support and hope that they’ll seek help could go a long way toward encouraging them to take that step.
Take that opportunity.
If you don’t already have a list of drug treatment facilities and programs drafted, create one.
Drug addicts often turn a deaf ear toward friends and family who implore them to seek help. Hearing the words from you on what may well be the darkest day of their life to date, could be a very strong catalyst indeed.