Misconduct MC 270 - Fact Finding Guide
Use of Intoxicants and Drug Testing
A. Use of Intoxicants
- What was the employer’s policy or rule regarding the use of intoxicants?
- When was the claimant allegedly intoxicated or when did the claimant use intoxicants?
- Where was the claimant allegedly intoxicated or where did the claimant use intoxicants?
If on the Job:
- Does the claimant admit being intoxicated or using intoxicants?
- If the claimant does not admit being intoxicated or using intoxicants:
- What made the employer think or state that the claimant was intoxicated or used intoxicants?
- Was there a witness who observed the claimant while intoxicated or using intoxicants? If yes, ask to speak with the witness(es).
- How long did this person observe the claimant?
- How did the claimant walk?
- How did the claimant talk?
- If the claimant was working while intoxicated, how did the claimant perform his or her duties?
- Was the smell of liquor noticeable on the claimant’s breath?
- Was there other evidence that the claimant was intoxicated or used intoxicants?
- If the claimant consumed alcohol during lunch, rest or similar break periods:
- Was there an employer rule that consumption of alcohol during such break periods will result in discharge?
- Was the claimant previously warned about such consumption?
- If the claimant reported to work with a hangover, has the claimant been warned or reprimanded at least once for such behavior?
If off the Job:
- Was the claimant discharged for this reason?
- How did this affect or injure the employer’s interests?
- Did the claimant report to work with a detectable level of intoxicants?
B. Irresistible Compulsion to Use Intoxicants
These questions are provided for determining whether the claimant has an irresistible compulsion to use intoxicants.
- Was the cause leading to the claimant’s discharge related to intoxicants?
- Did the claimant admit he or she had an irresistible compulsion to use intoxicants?
- Did the employer present any facts to show that the claimant had a drinking or drug problem?
- Was there a physician’s statement that the claimant had an irresistible compulsion to use intoxicants, or was addicted to drugs?
- Was the cause leading to the claimant’s discharge controllable by the claimant?
- If the claimant has previously or subsequently exhibited ability to control his or her use of intoxicants, what prevented control at the time of discharge?
- Had the claimant previously been discharged or suspended from work for absenteeism due to intoxication, or for using intoxicants on the job, or for gross neglect of duty while intoxicated?
- Is the claimant currently receiving, or has the claimant received treatment for his or her addiction? From whom?
C. Drug Testing
- What was the employer’s policy or rule regarding drug testing?
If discharged for refusal to take drug test:
- Was the test a random test or scheduled test?
- Was the claimant’s occupation hazardous, or did the claimant work in a hazardous environment?
- Did the claimant have a history of using drugs?
- Did the employer have a reasonable suspicion that the claimant was impaired by drugs? Did the employer receive information that the claimant was a drug user?
- Did the employer have a compelling interest to test the class or group of employees to which the claimant belonged?
- Was the employer’s compelling interest in testing rooted in public safety, enforcement of laws or government regulations?
- What was the claimant’s privacy expectation? Did the claimant know he or she would be required to take the drug test as a condition of employment?
If discharged for testing positive:
- Was the employer’s requirement or order for taking the drug test reasonable and lawful?
- Was the test valid?
- Was the chain of custody of the sample broken? Were procedures for the custody of the sample followed?
- Could the sample possibly be tampered with?
- What drug test was used?
- Was the test conducted by an independent laboratory?
- Did the test show positive readings? What "cutoff" level was utilized in determining whether the test was positive or negative?
- Was the test confirmed by another test?
- What explanation does the claimant give for the positive readings, if he or she does not admit using the drug?