Let’s say an employee is fired after their drug screening comes back positive for drug use. Typically, the first thing that employee is going to do is to try and collect unemployment benefits from the company that fired them. Whether or not they’re allowed to do this depends on a few things, but what your written drug-free workplace policy has to say about it is definitely a factor.
If you’ve done your written drug-free work policy correctly, it should already state what to do in this situation. Most workplace policies include that, because drug abuse is misconduct and therefore a violation of the policy, the employee will not be allowed to collect termination benefits.
Ever-Changing Unemployment Regulations
However, what about employees who got fired for a different reason and are currently collecting unemployment benefits? What happens with drug testing for fired employees?
This is something of a controversial topic in legislation, and it varies from state to state:
- Some states allow testing for former employees on unemployment, but don’t require it.
- Some states are forbidden to do any drug testing on former employees at all.
- Some states don’t allow the former employee to collect unemployment benefits, but only for a set amount of time.
- Other states will allow the unemployment benefits without testing if the former employee’s drug use has been “cleared” with the law—such as a medical marijuana card or drugs that have been prescribed by a doctor.
So it comes down to written drug-free workplace policies, or state regulations. An the state regulations is where it gets a little sticky.
Congress vs. The Department of Labor
In 2012, Congress passed a bill allowing states to drug test employees who were fired due to failed drug tests who were collecting unemployment. The Department of Labor, however, protests that drug testing for fired employees who failed their drug screens unfairly implies that these individuals are making bad decisions. The bill that Congress passed just became implemented in September of 2016, and the battle rages on. It’s hard to tell exactly where this hot-button issue will end up, and what the decisions will be.
A survey by the Drug and Alcohol Testing Industry Association and the Society for Human Resource Management has estimated that 57% of employers test all job applicants, and that 36% of employers perform drug testing after hiring the employees. Currently three states—Mississippi, Wisconsin, and Texas—allow drug testing for those collecting unemployment from former employers.
It’s Not Always Black and White
In the world of DOT compliance, the rules are a bit more straightforward, since workers are operating vehicles and their jobs require them to be completely clear-headed. If an employee gets fired as a result of a failed drug or alcohol test, they cannot collect unemployment benefits, since this is misconduct which puts many others at risk.
When a workplace employs workers who have nothing to do with operating vehicles or heavy machinery, sometimes the repercussions of a failed drug test are less strict. Or, as mentioned before, if the worker failed the drug test but their drug use is legal, the consequences can be more lenient. However, most DOT-regulated companies don’t take chances with this serious matter, and do not provide unemployment for its former employees who failed their drug screenings.
New Era Drug Testing is a DOT drug testing company which provides programs and solutions for companies that need to be DOT-compliant, including truck lines, limo services, cruises, and more. When it comes to drug testing for fired employees or any other questions you may have regarding drug-free workplace policies, please contact us.