Employment Manuals Regarding Drug Testing and Evidence of Drug Use

A recent spate of Pennsylvania Unemployment Compensation Board of Review decisions does not bode well for the professional licenses. Each case addresses employees fighting for unemployment benefits stemming from drug related employment actions. The two cases are Schuylkill Energy Resources, Inc v. Unemployment Compensation Board of Review and Ramon Figueroa v. Unemployment Compensation Board of Review. Both cases deal with work place related drug use and working under the influence as a basis for disciplinary action and termination.

In each case the employer established termination and disciplinary procedures in employment manuals. Each manual included provisions for automatic termination if an employee tested positive for  drug or alcohol (in urine or blood) drawn during work. One employer even allowed itself the opportunity to establish through a professional opinion and a scientifically valid test (a “D.R.E.”) that the person who is affected by the drug or alcohol or combination of both was under the influence while on the job.

These cases set forth the legal and judicial authority for employers who employ professional licensees to set forth in their employment manuals disciplinary action for on the job drug or alcohol use, legal or otherwise. On the job now means presenting symptoms that would warrant drug tests that produces a positive result. The issue is not reasonable suspicion or probable cause of criminal activity. Rather, it is the employer has any basis to believe that the employee/professional licensee is at work impaired, or under the influence, of any drug or alcohol.

The cases also stand for the proposition that the employer can use a drug recognition expert (“D.R.E.”) to testify about the nature and extent of the employee’s drug or alcohol blood or urine levels and that such rendered the person impaired while on the job. Significantly, the cases do not differentiate between legalized marijuana and alcohol or prescription medications. The cases do not differentiate between legal or criminal conduct. It is the mere presence of a substance in the person’s bodily fluids for which an employee or DRE can testify about an impairment that would warrant termination and denial of benefits in accordance with an employment manual and not the law.

This standard employment related drug testing policy and procedure will be implemented in the professional license setting. These cases allow for termination based upon legal use of marijuana. The legalization of marijuana will have no bearing on these cases.

More importantly, any and all evidence derived in an employment related drug and alcohol investigation will be provided to the Department of State for a license/disciplinary action. Submission to and securing the results of workplace related drug tests are important parts of a licensee’s offense.  As my other blogs have stated, losing one job based upon the refusal to submit to drug testing is losing a battle but winning the war in a license defense case.

Under no circumstances should you voluntarily submit to any drug testing that would incriminate you and/or provide either employer, but more importantly the state, ammunition in any broader license prosecution. Remember that your drug and alcohol workplace related testing results will be turned over to the state and become the basis for any and all disciplinary action. The lack of evidence available to a state investigator, prosecutor, hearing officer, or professional license board is more important than having to explain away to those same persons the presence of an illegal substance in your blood or urine. I’d rather you lose your job then test positive for any illegal substance.

Please call me to discuss your work place related drug testing manual, employment related investigations, or professional license disciplinary action is a result of the legal use of marijuana or alcohol.

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