Fired for failing a drug test

Fired for failing a drug test


failing a drug test and being fired
This type of issue is more complex than it might seem. Drug tests work the same in an unemployment hearing as they would in a regular court hearing with a similar evidentiary requirement. Employers can fire people on suspicion of drug use even without a drug test based on most states (right to work) law that means you can be fired at anytime for any reason legally.
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If the claimant (employee) has denied drug use then it is up to the employer to prove their case. As a side note, one of my favorite things when an employer accused an employee of smoking marijuana, I always asked, “how do you know it was marijuana”, either the employer goes silent or stammers about how “everyone knows how it smells” rather than admit they know how it smells from smoking it themselves.

Back to the issue, in order to prove the claimant had used drugs, the person who conducted the test, and the lab technician who physically ran the tests must testify at the hearing. The odds of that actually happening are none. Hearsay is allowed in many unemployment hearings but as far as proving drug use it isn’t. Since the employer cannot establish a chain of custody, how the test was conducted or anything related to the test with absolute certainty then their entire assertion that the claimant used drugs is worthless.

The only other topics that would be covered during the hearing simply because they would be required at this point is that the employer had a drug testing policy, and that the employee was made aware of it when they were hired. Being made aware of it means singing a piece of paper, not simply being told “we drug test”. Oral policies at any employer are worthless.

After employers lose this type of case they always become angry since they always believe that whatever they say should be accepted when they make no attempt to understand how laws work. If a claimant sticks to their story that they never used drugs/alcohol then they would more than likely qualify for benefits.

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