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Drug-Test Policy Should Include Off-Duty Prohibition

by on
in Firing,Human Resources

Pennsylvania employers that want to make sure their employees don't come to work under the influence of alcohol or illegal drugs should establish a random drug-testing program.

Pennsylvania's law makes employees ineligible for unemployment compensation anytime an organization bases its firing on employees' "failure to submit [to] and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."

Employers that have such a policy and discharge employees who test positive can take advantage of a provision in the law that bars positive-test employees from receiving unemployment compensation payments.

Employers that haven't adopted a policy and fire employees after suspected drug use—even if the suspicion is confirmed with a test—won't earn the benefit of the automatic unemployment victory. Instead, they must show that drug or alcohol use constituted willful misconduct. That can be a problem if the employee's drug use was off-duty.

Case in point: The Borough of Ellwood adopted a mandatory random drug-and-alcohol testing policy for all commercial drivers. All employees were trained on the policy. When driver Henry Turner tested positive for marijuana, the municipality fired him.

Turner alleged that the employer didn't explain that off-duty drug use constituted a violation of work rules and, therefore, his positive drug test didn't amount to proof of willful misconduct. But the Commonwealth Court disagreed, saying that so long as an employer's random-test policy is explained, it's a valid policy. And testing positive pursuant to a valid policy bars employees from collecting unemployment. (Turner v. Unemployment Compensation Board of Review, No. 871 C.D. 2006, Commonwealth Court, 2006)  

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