Another Question on Releasing Drug Test results
Posted: 14 August 2008 07:51 PM   [ Ignore ]
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A client fired an employee because the employee confirmed positive for prescription drug he had no prescription for (codeine).  The employee files for unemployment.  Employer responds that the employee flunked the drug test.  The employee is approved and gets unemployment.  The employer appeals the decision. Can the drug test results be submitted as evidence of misconduct associated with work?

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Bob McKenzie
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Posted: 15 August 2008 07:19 AM   [ Ignore ]   [ # 1 ]
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You must be OHIO!!!  Only in this great state is unemployment a 50-50 crapshoot.

I would have done the same thing.  Said the employee violated a workplace rule, stated the drug-free workplace rule, and would appeal using the positive drug screen results as evidence.  The unemployment agency is a governmental agency, just like workers comp—which if you fail a post-accident drug screen in Ohio, you have a good case to void the claim.

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Posted: 15 August 2008 07:40 AM   [ Ignore ]   [ # 2 ]
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No I am not OHIO - just Bob in Florida. I guess I wasn’t clear enough. 

Can I use the actual documentation from the drug testing lab as proof of the employee’s positive drug test without violating the confidentiality of the drug testing laws in Florida?

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Bob McKenzie
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Posted: 15 August 2008 08:48 AM   [ Ignore ]   [ # 3 ]
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I know that you can do it in other states.  I’m not sure what would prevent you from evidencing the positive result, but keep in mind that—if the employee pushes—you’ll probably have to establish chain of custody.

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Patrick Della Valle
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Posted: 25 August 2008 03:28 PM   [ Ignore ]   [ # 4 ]
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If Dept. accepted the claim despite the positive test, then sending them the actual result wouldn’t make any difference. You told them he failed the test, they allowed the claim anyway.  Perhaps the ee was able to show them he did have a prescription for the codeine, or that the company policy was vague.  I doubt that the Dept. would accept, as gospel, an ee’s claim that the test was invalid or the old “it wasn’t my sample” story.

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Posted: 25 August 2008 03:46 PM   [ Ignore ]   [ # 5 ]
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Thanks, Jadestonedoll.

In the State of Florida, it appears that they rubber stamp an employee’s application for unemployment benefits and allow all of the claims to go through in the employee’s favor.  This puts the onus on the employer to appeal the decision.  We are finding this happens in a great majority of the cases we help our clients with.  We have won a very high percentage of the unemployment appeals hearings and are able to prove misconduct associated with work, thus disqualifying the claimant for unemployment benefits and keeping the costs for our clients’ unemplyment rates lower.

I also found that releasing the drug test results in an administrative hearing does not violate the confidentiality of the drug test.  The hearing is Thursday afternoon and we’ll find out a couple of days after that how it goes.

Thanks again all.

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Bob McKenzie
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Posted: 25 August 2008 04:21 PM   [ Ignore ]   [ # 6 ]
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Ahh.. that makes a big difference.  Good luck with your appeal!

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