Misconduct MC 270

Use of Intoxicants and Drug Testing

This section discusses principles governing determinations on discharges resulting from intoxication or use of intoxicants, and drug testing.

A. Use of Intoxicants

"Intoxicant" as used in this section means any alcoholic beverage or distilled spirit, and drugs or other substances summarized as opiates, opium derivatives, hallucinogenic substances (including marijuana), and depressants of the nervous system such as phenobarbital and amphetamines.

When the employer alleges that the claimant used an intoxicant or was intoxicated and the claimant denies the allegation, it is necessary to gather facts to determine if the claimant indeed used intoxicants or was indeed intoxicated. The statement, "He was intoxicated," is a conclusion which may or may not be based on facts. If the facts do not support the conclusion that the claimant used intoxicants or was intoxicated, he or she would not be disqualified.

Example - Evidence of Intoxication:

The claimant was employed as cab driver. On the day he was discharged, he had returned to the employer's garage at the end of his shift and was observed by the head traffic superintendent as he checked in his cab. As a result of his observations, the superintendent reached the conclusion that the claimant had been drinking on the job, and immediately discharged the claimant.

The claimant denied that he was intoxicated at the time in question. He said that he had donated a pint of blood to a blood bank two days earlier and that had left him in a weakened condition. He stated that he felt ill when he turned his cab in, and that may be why the superintendent believed that he had been drinking. The employer’s head traffic superintendent testified that when he saw the claimant checking in at the garage, the claimant was in a 'very staggering condition'; that he 'wobbled' in going from the time clock to the cashier; that in appearance he was 'red faced, kind of blurry'; that in the 12 years of his employment with the employer, the superintendent had 'probably handled 200 cases of drunkenness of drivers'; and that in his opinion the claimant was intoxicated.

The employer also introduced a written statement from the doctor in charge of the blood bank at which the claimant had made his blood donation. This statement showed that the claimant was examined prior to his blood donation and was found to be normal, and set forth the doctor's opinion that the after effects of a blood donation in a normal person would not last longer than four or five hours. Other evidence produced by the employer showed that the claimant had at least once previously been terminated for drinking on the job.

The evidence in this case overwhelmingly points to the conclusion that the claimant was under influence of intoxicants at the time he checked his cab in at the appellant's garage.

Note that the employer in this case did not just give a conclusion that the claimant was intoxicated. Instead, the employer presented facts to support the conclusion that the claimant was intoxicated.

It is possible that a claimant will be under medical treatment and give the appearance of being intoxicated. This can happen as a result of certain medical prescriptions and occasionally happens with a diabetic patient who has had improper insulin shots. Verification of the condition or the prescription of drugs generally may be obtained through the claimant's physician.

Title 22, Section 1256 37 provides:

(Except where intoxication is the result of an irresistible compulsion to use or consume intoxicants or an inability to abstain) . . . an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if . . . :

1. Intoxicated When Reporting to Work or Returning to Work After Lunch or Rest Period or Similar Break Period.

   When an employee is intoxicated his or her performance on the job would be adversely affected. He or she would have substantially breached a material duty owed the employer, and the resultant discharge would be for misconduct (unless the intoxication results from an irresistible compulsion). It is not necessary that there is an employer rule prohibiting intoxication for a finding of misconduct. Likewise, prior warning or reprimand is not necessary.

   Example - Report to Work Under the Influence of Alcohol:

   The claimant was a gardener. On the last day of work, he was blowing leaves off stairs with a portable blower when he slipped on some sand and fell injuring his ankle. He went to a medical center for treatment and afterwards he was asked to and participated in an alcohol and drug screen. He came up positive for alcohol. The reading was .12. He was then suspended and later discharged.

   The claimant testified that the night before he had the accident he drank three liters of wine, but did not drink after 10 p.m. or before going to work at 7 a.m. the following morning. He stated he did not have an irresistible compulsion to consume intoxicants.

   The discharge was for misconduct. The claimant reported to work under the influence of alcohol. He tested positive with a reading of .12, a reading in excess of the State standard for being under the influence while operating a motor vehicle. It evidently affected his ability to work.

   What if an employee refuses to take the alcohol or drug test required by the employer to determine if the employee is under the influence of intoxicants? If the employee refuses to take the test and is discharged for the refusal, see C.1. Refusal to Take Drug Test below.

2. Use of Intoxicant Other Than Alcohol During Lunch or Rest Period or Similar Break Period.

   Use of intoxicants other than alcohol during lunch or break periods would be misconduct, unless the use of intoxicant is due to an irresistible compulsion. Furthermore, it is not necessary that there is an employer rule prohibiting the use of intoxicants other than alcohol during the break periods, or that the claimant is given a prior warning, before misconduct is found.

3. Use of Intoxicants During Working Hours

   Using intoxicants during working hours would evince a disregard of the standard of behavior which the employer has a right to expect, and would be considered misconduct, unless the use is due to an irresistible compulsion.

   Example - Use of Controlled Substances During Working Hours:

   The employer, at the request of the Department of Defense, began an investigation into the use of drugs and the dealing of drugs on the employer's premises by workers. During the course of the investigation, the claimant's name was mentioned as a user and purchaser of controlled substances.

   The claimant was interviewed by an investigator. The claimant admitted to the investigator that he smoked marijuana during working hours and purchased other controlled substances from fellow employees. He was then discharged by the employer.

   The discharge was for misconduct. Using controlled substances during working hours violated the standards of behavior which the employer had a right to expect of him.

   Example - Drinking While on Duty:

   In P-B-221 the claimant, a bellman, was discharged for drinking while on duty. At approximately 9:00 p.m., room service was requested by a hotel guest; the guest was intoxicated and wished to discuss her marital difficulties. After five minutes' conversation, the claimant returned to the lobby. An hour later the same guest requested a bottle of liquor, which the claimant delivered to her. A lengthy conversation ensued, the claimant drank one drink, and left. Shortly thereafter the claimant was summoned again, this time to deliver a carton of cigarettes, and was there about five minutes. During the course of the evening, the claimant also had a drink with another hotel guest.

   The next morning the hotel manager learned of the incidents, telephone the claimant, and reprimanded him. Later, the guest made an (unfounded) complaint that a ring was missing, and the manager called the claimant and told him not to report for work. Later, he discharged the claimant for drinking on duty and spending time in a guest's room.

   The employer testified that all employees of the hotel are informed at the time of hire that drinking on the job is grounds for termination. The claimant testified that he had never been so advised, and that he saw nothing wrong with taking a drink during working hours. The Board disagreed and stated:

   In the instant case the evidence establishes conclusively that the claimant, while on duty . . . partook of at least two drinks of intoxicating liquors with guests of the hotel. He was discharged for this violation of the employer's rules and for spending time in a guest's room. While there is a conflict in the evidence as to whether the claimant was specifically made aware of the existence of the rule against drinking, it is our opinion that his actions were such as to evince a disregard of the standards of behavior which the employer had a right to expect of him and were not simply good faith errors in judgment or discretion . . . .

   Note that when drinking on the job is involved, it is not essential that the employer has a rule against it. In P-B-221, the claimant stated he had never been advised that drinking on the job is grounds for termination. The Board admitted the conflict in the evidence as to whether the claimant was aware of the rule against drinking, but nevertheless found the claimant ineligible.

   Neither prior warnings nor reprimands are necessary for drinking on the job to constitute misconduct.

   Example - Drinking on the Job - No Prior Warning:

   The claimant was a home delivery driver. On the last date of work, after he made his deliveries and was returning his vehicle to the company, he was pulled over by the police. The claimant was arrested for driving under the influence of alcohol. He submitted to a blood test and was later found to have alcohol in his system in excess of the legal limits. The claimant ultimately pled guilty to the charges. He admitted to having at least two beers while he was still on duty. He said he had something to eat in his truck and also drank the beers. He contended that he had not been involved in this sort of problem with the employer before, and had never been warned that drinking on the job would subject him to automatic termination.

   The discharge was for misconduct. The claimant was arrested and convicted of being under the influence of alcohol while driving on the job. The absence of a warning on the part of the employer does not prevent the finding of misconduct.

   What if the claimant is a bartender and had a drink with his or her customers? In certain occupations, drinking on the job may be allowed or condoned. It is common for a bartender to have a drink with his or her customers. If the claimant was discharged solely for this reason, the discharge would not be for misconduct.

   What if the claimant states "everyone else on the job drank" as his or her reason for drinking? If this is so and the employer, although aware of the practice, took no action against it, the claimant's discharge would not be for misconduct. The employer, in effect, would have condoned the drinking. However, if the employer was not aware of the practice, the fact that "everyone else drank" would be immaterial.

4. Use of Alcoholic Intoxicant During Lunch or Rest Period or Similar Break Period

   Use of an alcoholic intoxicant during lunch or break periods would not be misconduct unless there is an employer rule prohibiting consumption of alcohol under penalty of discharge, and the claimant knows about it or prior warnings have been given.

5. Reports to Work With a Hangover

   An individual may be subject to disqualification if he or she reports to work with a hangover, even though he or she may not be intoxicated. The hangover may adversely affect his or her ability to work or may offend the employer's customers.

   It should be noted that when the claimant was discharged for reporting to work with a hangover, it requires at least one warning or reprimand for a prior violation before misconduct is found .

   Example - Reporting to Work With a Hangover:

   The claimant was a stock clerk and food checker in a chain store. His employment contract called for him to be at his checkstand, ready to work, at twelve noon. On the last day of work, he entered the store at noon and went to a back room to prepare to go to work. After 10 or 15 minutes, the acting manager checked and found that he was still preparing to go to work. His eyes were bloodshot, his clothes wrinkled, and he smelled strongly of alcohol. He said that he had been to a party the night before, had a few drinks, and had not arrived home until 2:30 a.m. Because the claimant had received prior warnings for the reporting to work in a like condition, he was discharged.

   The claimant had a duty to conduct himself during his off-duty hours in a manner that would enable him to report to work ready for work at the scheduled hour and in proper physical condition. The discharge was for misconduct, the claimant breached a duty owed his employer.

6. Use of Intoxicants Off the Job

   Generally speaking, the conduct of a claimant off the job is his or her own affair and does not affect the employer's legitimate business interests. However, if the claimant used or consumed intoxicants while off the job to the degree that it seriously impaired his or her ability to work, this would tend to injure the employer's interests and misconduct may be shown, unless the use of intoxicants is due to an irresistible compulsion.

   Example - Drinking Off the Job Not Misconduct:

   In P-B-191, the claimant was employed as a janitor by the Mather Air Force Base. He was arrested for drunk driving and paid a fine of $250. Later he was separated from federal service on the ground of serious misconduct while off duty. The Board found the claimant eligible and stated:

   We have previously held that, in order to constitute misconduct within the meaning of code section 1256, the claimant must have materially breached a duty owed the employer under the contract of employment, which breach tends substantially to injure the employer's interest. . . . In the present case, the incident occurred while the claimant was off duty and did not tend substantially to injure the employer's interest. Accordingly, we find that the claimant was discharged for reasons other than misconduct connected with his work.

   What if the claimant has consented, as a condition of employment, to refrain from drinking both on and off the job?

   Example - Claimant Consented Not to Drink:

   The claimant had been suspended for 30 days for reporting to work under the influence of alcohol. He was reinstated when he agreed to refrain from drinking alcoholic beverages, both on and off the job. It was also agreed that any violation of this stipulation would result in a discharge.

   About three months later the claimant was arrested for driving without a driver's license. After his release the employer convened a conference to ascertain the reason for his arrest. At the conference, the employer asked the claimant if he had drunk any alcoholic beverages since their agreement. The claimant replied that during his off duty hours he had an occasional beer. The employer then discharged the claimant for violating their agreement. The Board found the claimant eligible and stated:

   A claimant's activities during off-duty hours may very well be detrimental to the employer's interest, and a discharge because of such activities can be for misconduct connected with the work. Although the claimant did not violate an employer rule, he did violate the agreement he had with the employer. The claimant was not discharged because he was incarcerated, but because he admitted drinking an occasional beer off the job. The record is clear that after signing the agreement the claimant did not report for work under the influence of alcohol. Nor did he report with the odor of alcohol on his breath. There is no showing that his off-the-job drinking subsequent to the agreement adversely affected the employer's interests. Before it can be held that mere violation of an agreement constitutes misconduct; it must be shown that the act itself was misconduct. In this case, the employer presented no evidence to show that the claimant's failure to live up to the terms of the agreement injured or tended to injure the employer's interest.

   What if the use is off the job, and the claimant reports to work with a detectable level of a controlled substance in his or her system, but not under the influence of the controlled substance?

   Example - Report to Work With Detectable Level of Intoxicant:

   The employer had a substance abuse policy which prohibited employees from reporting to work with a detectable level of intoxicants or illegal drugs. The policy further provided that an employee involved in a workplace accident would be required to take a drug test. Refusal to submit to a drug test under those circumstances would be cause for discharge.

   The claimant worked as a ramp worker from 3:00 p.m. to 11:00 p.m. At about 7:00 p.m. he moved a jetway from an aircraft. Prior to doing that, he did not disconnect the ground power line which was connected to the plane. As a result, damage was caused to the aircraft. The claimant immediately notified the supervisor. The claimant was then escorted to a nearby medical facility for a drug test. He tested positive for the presence of marijuana metabolites. The results were confirmed by another test. The claimant was then discharged.

   The claimant admitted that he used marijuana at a bachelor party two days prior to the incident, but said that when he reported to work on the last day he was not feeling the effects of the marijuana usage.

   The discharge was for misconduct. The employer's policy prohibited employees from reporting to work with a detectable level of intoxicants. The claimant wilfully violated a reasonable employer rule.

B. Irresistible Compulsion to Use or Consume Intoxicants

If the claimant is discharged because of the use of intoxicants, either on or off the job, the discharge would not be for misconduct if he or she has an irresistible compulsion to use or consume intoxicants.

Title 22, Section 1256-37(c) provides:

An irresistible compulsion to use or consume intoxicants is regarded as an uncontrollable illness rather than a voluntary act on the part of the claimant. If the claimant suffers from such compulsion, then the discharge is not for misconduct.

Example - Irresistible Compulsion to Use Intoxicants:

In Jacobs v. CUIAB (Third Appellate District, 1972), the claimant had been employed for 12 years as a ramp serviceman for an airline company. Because he suffered from alcoholism, it had been necessary on several occasions to send him home from work because of his condition. After warnings for reckless driving and an accident while driving on the ramp, he was also suspended from driving company vehicles. He was ultimately discharged because of chronic absenteeism stemming from intoxication due to alcoholism. In holding the disqualification under Section 1256 did not apply because wilfulness of the intoxication had not been shown, the Court said:

1. Section 1256.5 of the UI Code

   A claimant who is discharged due to an irresistible compulsion to use intoxicants is not subject to disqualification under Section 1256 of the UI Code. However, he or she would be disqualified under Section 1256.5 of the UI Code. Section 1256.5(a) provides:

   (1) An individual is disqualified for unemployment compensation benefits if . . . the director finds that he or she was discharged from his or her most recent work for chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages.

   In P-B-400, the Board commented on the intent of the legislature in enacting this section of the UI Code. It states:

   The enactment of section 1256.5 of the code merely reflects the concern of the legislature that alcoholism is an all too common social disease over which its victims have little control and that the denial of benefits for nonvolitional conduct is harsh. On the other hand, the legislature has expressed its intent that the victim not be granted unemployment insurance benefits unless and until he or she can demonstrate that positive steps have been taken to obtain rehabilitation. Consequently, under this statute, the claimant will receive no benefits until he or she adopts a more responsible position by seriously addressing the problem of his or her alcoholism to a degree sufficient to permit him or her to return to work.

   Although the Board addresses alcoholism in the above paragraph, the same can be said of addiction to other intoxicants.

   Example - Discharged Due to An Irresistible Compulsion to Use Intoxicants:

   In P-B-445, the claimant was discharged by his employer for reporting to work under the influence of alcohol. The claimant, in an interview with the Department on March 13, stated that he had been drinking prior to reporting to work on the last date of work, and that he had been sent home from work on that date. He also indicated he had been taking valium during the same time frame. On March 27, the claimant was disqualified under Section 1256 of the Code. No determination was issued with respect to Section 1256.5.

   The claimant appealed the disqualification and, in an interview with the Department on April 16, admitted that he was under the influence of intoxicants on his last day of work. He also admitted that he had an irresistible compulsion to take drugs and that he had completed a rehabilitation program. Again no determination was issued with respect to Section 1256.5 after the interview of April 16.

   The Board found the claimant not disqualified under Section 1256 of the Code and stated:

   In the appeal before us, the evidence establishes that the claimant had an irresistible compulsion to drink and this condition caused the behavior for which he was discharged by the employer.

   Under the circumstances, it must be held that the claimant was not discharged for misconduct within the meaning of section 1256 of the code because his conduct was not volitional. . . However, the evidence which supports this result also suggests that the Department should have issued a determination under section 1256.5 of the code, either following the March 27 interviewer, certainly, the April 16 interview.

   In other words, the Department should have found the claimant eligible under Section 1256 but ineligible under Section 1256.5 due to the claimant's irresistible compulsion to drink leading to his discharge.

   • NOTE: If the claimant is disqualified under Section 1256.5, the employer who has submitted a timely response is entitled to a favorable ruling, even though the claimant is found eligible under Section 1256 of the UI Code.
2. When Does Section 1256.5 Apply

   Section 1256.5 is applicable to discharges only when the claimant’s employment has been terminated because of chronic absenteeism due to intoxication, reporting to work while intoxicated, using intoxicants on the job, or gross neglect of duty while intoxicated that was caused by his or her irresistible compulsion to use or consume intoxicants. Sometimes the evidence does not readily indicate if the claimant has an irresistible compulsion to use or consume intoxicants. The following are indicators that the claimant may have an irresistible compulsion to use intoxicants:

   • Claimant's admission that he or she is an alcoholic or a drug addict. (For example, in P-B-465, the claimant admitted he was an alcoholic and was attending Alcoholics Anonymous; in P-B-445, the claimant admitted he had an irresistible compulsion to take drugs and had completed a rehabilitation program.)
   • Previous absenteeism or suspension from work due to use of intoxicants, as in Jacobs v. CUIAB.
   • Drinking prior to reporting to work, as in P-B-445.
   • Participation in or completion of a rehabilitation or detoxification program. (The claimant completed such a program in P-B-445.)
   • Request for assistance from an employee assistance program with regard to alcoholic or drug problems.
   • Participation in Alcoholics Anonymous or Narcotics Anonymous, as in P-B-465.
   • Incarcerations or marital difficulties related to drinking or consumption of drugs.

   While certain indicators point to the claimant’s inability to abstain, such as participation in a rehabilitation or detoxification program, the Department must rely on the judgment of "competent professionals" to substantiate that a claimant suffers from alcoholism to the degree that he or she is under an "irresistible compulsion" to drink, or that he or she has a physical addiction to drugs. Only the "competent professional" is qualified to diagnose such an addiction.

   If the evidence indicates that the claimant had control over his or her actions, Section 1256.5 will not apply.

   Example - Claimant Had Control Over Use of Drug:

   The claimant was identified in an undercover investigation of drug use on the premises. The claimant confessed both verbally and in writing to using an illegal drug. He contended that he was driven to using it because of the constant pain he suffered from gout, and the overtime pressures from the employer. He also stated that he started using the drug because others were, and he probably would not have continued but for the fact that his friends were. He contended that the use of the drug did not hamper his job performance, but improved it. Once he was fired, he immediately ceased using the drug.

   In this case, Section 1256.5 does not apply. Being driven by stress to use drugs, versus finding some other outlet, is more a matter of personal choice than an irresistible compulsion. Moreover, he was really doing it only because his friends were. He ceased using it as soon as he was discharged.

   It should be noted that Section 1256.5 may not apply just because the claimant had a drinking problem before, and the claimant was absent from work without calling in. If the claimant states that his or her action leading to the discharge was not due to an irresistible compulsion, and the weight of evidence is not against his or her statement, he or she should not be disqualified under Section 1256.5.

   Example - Section 1265.5 Does Not Apply:

   The claimant was last employed for two and a half years as a machinist. He last worked on March 29. Thereafter he did not report for work for four consecutive days and did not call the employer until well after his shift had begun on the fourth day. He was therefore discharged.

   On March 17, the claimant was placed on a three day suspension for his violation of the employer's attendance rules. He was also referred to the employer's employee assistance counselor who, in turn, referred the claimant to a therapist for evaluation and treatment. The claimant admitted to being an alcoholic and he was a member and regularly attended meetings of Alcoholics Anonymous.

   However, the claimant insisted that it was not his drinking that caused him to miss the four days work which resulted in his discharge. He testified that during his four days absence he was suffering from a stress syndrome bordering on a "mental breakdown." Because of the stress crisis he was experiencing he felt incapable of facing anyone. He did not get out of bed to dress and fix his own food and he did not call anyone until the fourth day when he called the employer.

   In this case, even though the claimant admitted he had a drinking problem, he should not be disqualified under Section 1256.5 of the UI Code. The claimant insisted that it was not his drinking that caused him to be absent, and there is no evidence to the contrary.

   Occasionally, a claimant is discharged for stealing money from the employer, and states that he or she needed the money to purchase illegal drugs because of an addiction. Does Section 1256.5 apply? The answer is "no." In the case of a discharge, Section 1256.5 is applicable when the claimant has been discharged for chronic absenteeism due to intoxication or reports to work while intoxicated or uses intoxicants on the job, or gross neglect of duty while intoxicated. When the discharge is the result of other actions, the issue is resolved under Section 1256.

   If the claimant voluntarily quit due to an irresistible compulsion to use or consume intoxicants, refer to BDG VQ 270.

3. Department's Duty to Inform

   Section 1256.5(c) of the Code cautions:

   The Department shall advise each individual disqualified under this section . . . of benefits available . . . and, if assistance in locating an appropriate treatment program is requested, refer the individual to the appropriate county drug or alcohol program administrator.

   Thus Section 1256.5 requires the Department to advise the claimant of his or her right to file for disability insurance benefits; if the claimant requests assistance in locating a treatment program, refer him or her to the appropriate county drug or alcohol program administrator. In each county there is a designated program administrator for alcohol and/or drug treatment programs. For questionable cases regarding the authenticity of a given treatment program, the interviewer may seek the assistance of the county program administrator.

4. Confidentiality of Information

   Determinations related to Section 1256.5 which involve information about the claimant's participation in a drug or alcohol treatment program are considered to be of a confidential nature. Such information may not be disclosed to any unauthorized person. For more information on this subject, refer to the Determinations Manual, 98 08 00, Confidentiality of Drug and Alcohol Abuse Information, and the Information Practices Handbook, 10-5200, Drug and Alcohol Abuse Information.

C. Drug Testing

More and more employers have resorted to drug testing as a condition for continued employment. A claimant might refuse to take the drug test, claiming it was an invasion of his or her privacy, or might test positive and be discharged.

The Fourth Amendment to the U.S. Constitution states:

Article 1, Section 1 of the California Constitution provides:

On this issue of drug testing, the Board, in P-B-454 (1987), stated:

Thus, a drug test, using urine or blood samples, is a search. It is subject to the constraint of the Fourth Amendment in that the search by a public employer is not permissible without "probable cause." The employee's right to privacy is protected by the California Constitution and the Federal Constitution (through court interpretations) from both public and private employers. In resolving issues involving drug tests, it is necessary to balance the competing interests between the employer's legitimate concerns and the employee's rights to privacy.

1. Refusal to Take Drug Test

   When the claimant is discharged for refusal to take a drug test, it is necessary to determine if the employer's requirement that the claimant take the drug test is reasonable. The requirement is reasonable if the employer's compelling interest to test outweighs the employee's rights to privacy. To determine if the employer's compelling interest outweighs the employee's rights to privacy, the following questions need to be addressed:

   • Was the test a random test or a scheduled test?
   • Was there "reasonable suspicion" to test the employee, or was the test conducted without any particularized suspicion?
     • "Reasonable suspicion" is defined as a collection of specific objective facts, and the rational inferences that a reasonable person is entitled to draw from those facts, in light of his or her experience.
   • Was the work hazardous or did the claimant work in a hazardous environment?
     • "Hazardous" means any work which poses a threat of serious harm to the claimant or others.
   • Did the employer have a compelling interest to test?
   • What was the employee's expectation of privacy?
   • Was the employer's requirement to test based on government regulations?

   The following cases and discussions illustrate the relevance of the above questions to issues involving drug testing.

   1. Random Testing

      Random testing is the choosing of an individual or a group of individuals on an arbitrary basis to determine if the individual's system contains drugs, without any particular suspicion that it does. By virtue of its being random, the test precludes any specific knowledge or reasonable suspicion on the part of the employer. Courts have generally held that random testing of employees is unlawful.

      However, random testing was determined to be permissible in the following case.

      Example - Random Testing Permissible:

      In Shoemaker v. Handel (U.S. Court of Appeals, 1986) the New Jersey Racing Commission has statutory powers to regulate horse racing in that state, including the testing of officials, jockeys, trainers, grooms and the postrace specimen testing of horses. On any given race day, the names of three to five jockeys are drawn at random from a pool containing the names of all that day's jockeys, and the selected jockeys must provide urine samples at the end of the race day. The jockeys challenged the Racing Commission, contending that the Commission's regulations authorize searches and seizures which violate Fourth Amendment protections and the enforcement of these regulations violates their constitutional right to privacy.

      The court found the testing not unlawful and stated:

      In closely regulated industries . . . an exception to the warrant requirements has been carved out for searches of premises pursuant to an administrative inspection scheme . . . . [T]he question that arises in this case is whether the administrative search exception extends to the warrantless testing of persons engaged in the regulated activity.

      There are two interrelated requirements justifying the warrantless administrative search exception. First, there must be a strong state interest in conducting an unannounced search. Second, the pervasive regulation of the industry must have reduced the justifiable privacy expectation of the subject of the search.

      Public confidence forms the foundation for the success of an industry based on wagering . . . . It is the public's perception, not the known suspicion, that triggers the state's strong interest in conducting warrantless testing . . . . The State Steward has no discretion in conducting the tests. Moreover the State Steward has no discretion as to who will be selected for urine testing. That choice is made by a lottery . . . . Thus we hold that daily selection by lot of jockeys to be subjected to urine testing does not violate the Fourth Amendment.

      NOTE: California courts have not yet decided this issue of random testing. This New Jersey court decision is included to illustrate that in a heavily regulated industry, random testing may be allowed by the court.

   2. Prior Consent to Random Testing

      The employer may ask a claimant to give his or her consent to future random drug testing as a condition of continued employment. The result of the giving of the consent is the claimant's waiver of his or her right of privacy, guaranteed by the California Constitution. In general, and subject to the exception shown below, the claimant's waiver of the constitutional right of privacy will be considered to have been involuntary and coerced, and therefore invalid, as economic well-being is dependent upon that consent.

      In P-B-454, the Board commented:

      [A] number of courts have examined various aspects of the issues involved in drug testing by public sector employers. These considerations are relevant since we are dealing with a public-provided benefit which cannot be withheld as a result of the demand that the employee waive a constitutional right.

      In Semore v. Pool, the appellate court held:

      While plaintiff could contractually agree not to assert his right to privacy, we think it clear that the employer could not use such an agreement to circumvent the public policy favoring privacy, and the employer could not successfully enforce such a contractual agreement if it intruded on plaintiff's right to privacy. If the intrusion violates the right to privacy, it is illegal whether or not it is pursuant to an agreement. If pursuant to such an agreement, the agreement would be unenforceable because it would be against public policy."

      The "Federal Regulation Exception": Under federal regulations, many businesses are required to do pre-employment drug testing as well as drug testing of present employees. Present employees are selected randomly, are tested post-accident, or are tested if reasonable suspicion of impairment is present. Generally, the regulations are based upon the (federal) Drug Free Workplace Act, enacted in 1988, and related Acts. For instance:

      • Pipeline Employees: The Research and Special Programs Administration of the (federal) Department of Transportation has provided for mandatory random testing for operators of pipelines used for transport of natural gas, liquefied natural gas, or other hazardous liquids. The "Mandatory Guidelines for Federal Drug Testing Programs," published by the Department of Health and Human Services in 1988, provides procedures for employers and safeguards for employees, and has been adapted for use by the Department of Transportation in its "Procedures for Transportation Workplace Drug Testing Programs."
      • Truck Drivers: The Controlled Substance Testing regulations, promulgated by the Federal Highway Administrator, apply to motor carriers engaged in interstate commerce (drivers crossing state lines, even if the eventual destination is within the state), and exclude persons who, for instance, drive custom harvesting equipment, operate a vehicle for a beekeeper, or drive in an exempt intracity zone; the regulations are in addition to state licensing requirements. The regulations provide for pre employment testing and for testing during the annual medical examination required for licensing; after the first year, the employer may randomly select 50 percent of the drivers to be tested. Testing is also required post accident. Failure to test or to pass the test results in a letter of disqualification, which prevents the driver from driving a commercial vehicle for one year if it were a first offense or if the driver was not driving a truck placarded under the Hazardous Materials Transportation Act; for a three year period if the vehicle was transporting hazardous materials; and the disqualification is "for life" for a second offense.

      Other employers have similar rules. Interviewers who believe that an employer is subject to one of the federal regulations should verify with the employer that there is a regulation that covers the industry. If doubt still remains, the interviewer should ask the employer for written information concerning the drug testing policy.

      If the employer has a drug testing policy as a result of a federal requirement, the employer's request for random testing is reasonable and the claimant's waiver of his constitutional rights is also reasonable. The claimant who objects to the randomness of the test will be subject to disqualification if he or she is discharged for failure to take or pass the test. See also c. and g. below.

   3. Occupation not Hazardous, no Reasonable Suspicion

      If the claimant's occupation is not hazardous and there is no reasonable suspicion that the claimant is under the influence of illegal drugs, the employer's order that the claimant take a drug test would be unreasonable, and the claimant's refusal would not be considered insubordination.

      Example - Occupation not Hazardous, no Reasonable Suspicion:

      In Luck v. Southern Pacific Transportation Co., a California Court of Appeal case, the plaintiff was a computer programmer in the employer's engineering department. She and other engineering department employees were instructed to provide a urine sample in the course of a random, first time, unannounced drug test. She refused and was terminated for insubordination.

      The employer argued that Article 1, Section 1 of the California Constitution protects only the gathering or use of personal information, and that a urine drug test is not encompassed by the constitutional right to privacy. The court disagreed, ruling that the constitutional right encompasses a "diverse range of personal freedoms," such as the right of procreative choice, the right to refuse medical treatment, and the right to refuse a polygraph test. The court also stated that the collection and testing of urine violated normal expectations of privacy and could lead to disclosure of private facts about one's life.

      The court then noted that under the Fourth Amendment to the U.S. Constitution, drug testing by the government may be lawful if it is justified by a "legitimate governmental interest." Under Article 1, Section 1 of the California Constitution, however, the court concluded that a higher standard applies: a private employer must have a compelling interest to test for drugs.

      In the decision, the court found that the employer did not have a compelling interest to test the plaintiff for drugs. The court reasoned that the plaintiff worked in a traditional office environment, and there was no clear nexus between her job performance and safety. The court acknowledged that if the plaintiff's performance were impaired because of drug use, the employer's operations could be adversely affected, therefore leading to a threat to public safety. But the court found that "the chain of causation between misconduct and injury (was) greatly attenuated." The court said:

      While railroads clearly have an interest in the safe operation of their trains, it is not clear that testing Luck furthered this interest.

   4. Occupation Hazardous, Reasonable Suspicion Present

      Unlike the above situation, if the claimant's employment is hazardous, and the employer has a "reasonable suspicion" to test, the claimant's refusal to take the drug test would be considered a refusal to comply with a reasonable request from the employer. The refusal would be considered insubordination and the resultant discharge would be for misconduct.

      Example - Hazardous Occupation, Reasonable Suspicion:

      In P-B-454, the claimant worked as a drop hammer operator for a steel company, a hazardous job. The employer had a formal written policy with regard to circumstances under which an employee was required to submit to a chemical test. The policy provided that employees were required to submit to a urinalysis or a blood test if a manager or supervisor has a reason to suspect an employee of being under the influence of alcohol or drugs.

      On his last day of work, the claimant forgot his locker key and elected to break into his locker rather than to go to security to ask them to open the locker. After he had reported to his work station, the security manager discovered the damaged locker and approached the claimant to discover the circumstances leading to the damage.

      The security manager later said, "The claimant's head moved from side to side and while doing so, I couldn't seem to get straight eye-to-eye contact with (the claimant) most of the time. When I was able to look him in the eyes, I noticed the pupils of his eyes were dilated, and that the whites of his eyes were slightly red. His eyes also appeared to be glazed. His speech seemed to be slightly slurred . . . .

      The security manager reported to the personnel manager and they, with the claimant's immediate supervisor, approached the claimant. They indicated they were concerned about his ability to work safely and the claimant became verbally abusive. The security manager expressed his concern that the claimant might be under the influence of a substance which affected his ability to work safely.

      The claimant then refused to take any chemical test. He believed the employer was unreasonably requiring him to take the test. Subsequently, the claimant went to his locker and changed out of his uniform. At that point, the personnel manager specifically informed the claimant that he was required to take a test prior to performing any more work for the employer. The claimant refused and left the premises. On the following two days, the claimant again refused to take the test and was then discharged. The Board found the claimant ineligible and stated:

      Some encroachment upon the right to privacy for drug tests (would be permitted) providing certain safeguards are met . . . . If the occupation is inherently dangerous, then employee testing will be permitted providing there exists a reasonable suspicion that the particular employee is functioning with impaired ability.

      The work the claimant was performing involved a high degree of risk to others, should it be performed by a person whose abilities were impaired by drugs or alcohol. The actions of the claimant led to the conclusion . . . that there existed a reasonable suspicion that the claimant may be under the influence of some ability-impairing drug.

      We think . . . the standard which governs our examination of whether or not the test required of the claimant was reasonable, is not whether or not the claimant was actually intoxicated or under the influence of an ability- impairing drug but rather, did the employer have reasonable grounds to suspect that the claimant may have been so impaired. Here, the fact that two of the employer's managers entertained such a suspicion leads us to the conclusion that their decision to compel the claimant to take the drug test was reasonable.

      While each individual possesses a right to personal privacy, when an employee is employed in an inherently dangerous occupation where there exits a substantial risk of harm to himself or others, as was the case with the claimant here, such right must yield to the employer's overriding concern for the safety of all employees when there is a reasonable suspicion on the employer's part that an employee may be under the influence of some intoxicant.

      In P-B-454, the unusual behavior of the claimant provided the "reasonable suspicion" for testing. This "reasonable suspicion" may also be based on information that the claimant is a drug user.

      Example - Information That Claimant Used Drugs:

      In Allen v. City of Marietta, a U.S. District Court case from Georgia in 1985, the City Manager of the City of Marietta had received reports from various sources that employees of the Electrical Distribution Division of the Board of Lights and Water were using drugs. The City Manager determined that drug usage might have contributed to a large number of injuries to the employees. "Given the extremely hazardous nature of the work done by the employees, such drug usage on the job constituted a threat to the safety of the employees and the general public . . . ." The City Manager began an undercover operation to determine who was using drugs on the job. He introduced an informant into the workplace, who reported that he smoked marijuana with various employees both off and on the job and had kept records of individuals and dates. The City Manager noticed a correlation between the named individuals and "unexplained" accidents.

      Based upon the provided information, the City Manager decided to terminate about 16 employees for use of drugs on the job. When none "volunteered to resign," the City Manager advised them they would be fired unless they chose to take a urinalysis test. The six plaintiffs in this suit took the test and tested positive for the presence of marijuana. All were fired.

      Of the presence of reasonable suspicion, the Court stated:

      [T]he court would find that evidence was presented to the effect that each plaintiff had used drugs on the job."

      In this case, the employer had a witness to the drug use and sufficient reasonable suspicion of the use of drugs to warrant a test.

   5. Hazardous Work Environment, Known History of Drug Use

      Even though "reasonable suspicion" of impairment is not present at the time the test is requested, if the employer has an interest in a drug-free work place, and the claimant works in a hazardous environment, and the claimant has a known history of drug abuse, then the employer's request to have the claimant take a drug test is reasonable. Refusal to take a drug test under such conditions is insubordination and disqualifying.

      Example Hazardous Work Environment, Known History of Drug Use:

      In AFL and CIO v. Unemployment Insurance Appeals Board, (Second Appellate District, 1994), the claimant, despite his occupation as house-keeper/maid, worked in a hazardous environment by virtue of the job site, an oil platform. He was hired in 1987 despite testing positive for marijuana, and had been suspended on one previous occasion for testing positive for drugs.

      The employer was under contract with its client to maintain a drug free work force. The employer's drug free policy required employees to take an annual physical which included a drug test. The employees were also subject to random drug testing by the employer, its client and the U.S. Coast Guard.

      When required to take a drug test as part of the annual physical, the claimant refused because he knew he would test positive. He was discharged because of the refusal. The Board found him ineligible.

      Regarding the claimant's expectation of privacy, the Court stated:

      [His} privacy expectations were minimal since when he took the job, he knew that both the Coast Guard and oil companies with whom his employer contracted could order him to be tested at any time. . . . The requirement of a drug screen as part of an annual physical examination, under the circumstances, was a minimal intrusion on his already diminished expectation of privacy.

      As for the employer's compelling interest to test, the Court stated:

      Unlike an airport, transit authority, or even a nuclear power plant where some jobs might clearly be classified as non-safety-sensitive due to lack of access to equipment, places, or information disseminating areas where employee impairment could constitute a direct threat, the oil drilling platform was categorized by employer and employee as a hazardous work environment. . . . [T]hese potential threats to safety are more persuasive in the setting of an offshore drilling platform where all employees might be threatened by the acts of a drug-impaired employee than in a setting where the acts of a drug-impaired employee could not possible pose a direct threat to safety of the other employees or the employer’s business.

   6. Legitimate Governmental Interests

      The same balancing act of the employer's interest in testing and the employee's privacy expectation applies also to public employers.

      Example 1 - Government's Need Outweighs Privacy Interests:

      In National Employees Union v. United States Customs Service (1989), the U.S. Supreme Court considered a suit by the Customs Service employees. Under the Customs Service program, employees are required to undergo drug screening by urinalysis as a condition of employment for placement into positions in which the employee is directly involved in drug interdiction or enforcement of related laws, or that require the employee to carry firearms or handle classified material.

      Customs Service employees brought suit. They claimed that the program constituted an unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution. They contended that the testing can be lawfully performed only when there is probable cause or "reasonable suspicion" to support a belief that the particular employee being tested had used illegal drugs.

      The Supreme Court disagreed that a warrant or even probable cause is necessarily required every time a public agency searches an employee. The Court ruled that the Fourth Amendment requires only that the searches be reasonable under the circumstances presented in a particular case. In the context of drug testing, the reasonableness of the search is determined by balancing the individual's reasonable privacy expectations against the government's interest in conducting the search without a particular suspicion of drug use.

      The Court determined that the Customs Service had a compelling interest in "ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment," in providing "effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a fire arm," and in "protecting truly sensitive information."

      The Court concluded that "the government's need to conduct the suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms."

      Example 2 - Government's Need Outweighs Privacy Interests:

      In Jones v. McKenzie, a 1986 case from the U.S. District Court, District of Columbia, the plaintiff submitted to a mandatory drug test as part of the school system's physical and was subsequently discharged because her urine specimen indicated "a positive use of drugs." The school district's policies required that school personnel refrain from using, possessing, or being under the influence of marijuana while on school premises. The confirmed finding of an illicit narcotic substance in the urine of an employee shall be grounds for termination. The plaintiff, a school bus attendant, filed suit partly because of the mandatory drug test "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts."

      The District Court balanced the employees' expectation of privacy and the employer's public safety consideration and held the claimant eligible. The Court stated:

      School bus drivers or mechanics directly responsible for the operation and maintenance of school buses might reasonably expect to be subject to urine and blood tests not required of other bus drivers without particularized suspicion. . . . It does not follow that a school bus attendant like plaintiff should have expected to be exposed to such testing or that public safety considerations required testing of a school bus attendant like plaintiff . . . ."

      However, the employer appealed to the United States Court of Appeals, and the Court of Appeals reversed the decision of the District Court. The Court of Appeals stated:

      The District Court correctly focused on these safety concerns, but it attempted to draw a distinction in this case between bus drivers and mechanics, who might constitutionally be subject to drug testing, and bus attendants, who could not be. . . . We disagree with this judgment. While the safety concern may be somewhat greater for a school bus driver, it is still quite significant in the case of an employee who is responsible for supervising, attending and carrying handicapped children. For example, the danger to a young, handicapped child, should she be dropped by an attendant or ignored while crossing the street, is obvious. In light of these safety concerns, we find that the (employer) acted pursuant to a significant and compelling government interest in requiring drug test . . . as a part of routine employment-related medical examination.

   7. Government Regulations

      A private employer may be required by government regulations to establish compulsory drug testing without reasonable suspicion that an employee is a drug user. The employer's order under these regulations to have the claimant tested is reasonable, and the claimant's refusal would be considered insubordination.

      Example - Drug Testing Required by Government Regulations:

      In Skinner v. Railway Labor Executives Associations (1989), the U.S. Supreme Court considered drug testing regulations promulgated by the Federal Railroad Administration (FRA) in 1985. The regulations require mandatory drug testing by a private railroad employer of all railway employees directly involved in certain types of serious train accidents. The regulations were issued in response to evidence that alcohol and drug abuse by railway employees was "a significant problem in the railroad industry," causing accidents that resulted in fatalities, nonfatal injuries and property damage.

      As in the Customs case, the Court found that drug testing can be constitutional even without "particularized suspicion" that an individual is in fact a drug user. The court identified the government's compelling interest in promoting railroad safety. The Court noted that employees subject to testing under the regulation "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences, . . . [and] can cause great human loss before any signs of impairment become noticeable to supervisors or others.

      The Court found that intrusions on privacy under the regulations are limited. It noted that blood tests "are common place in these days of periodical physical examination," and that "the blood test procedure has become routine in our every day life."

      The Court held that the drug testing contemplated by the regulations is not an undue infringement on the expectations of privacy of the railroad employees affected.

2. Testing Positive

   When the claimant was discharged because he or she took a drug test and tested positive, the following questions should be considered:

   1. Was it reasonable for the employer to require the claimant to take the drug test? (Whether an employer's requirement to test is reasonable is discussed in C.1., Refusal to Take Drug Test above.)
   2. How reliable was the drug test?
   • Reasonableness of Requirement to Test

     Even though the claimant tested positive and was discharged, the discharge would not be for misconduct, if the request is not reasonable.

     Example - Claimant Shouldn't be Tested:

     The claimant worked for a bus company. Her job involved cleaning and refueling the employer's coaches. The employer had a rule prohibiting employees from working with restricted drugs or alcohol in their systems.

     On the last day of work, the claimant spoke with her supervisor about taking some time off for a vacation. The supervisor observed the claimant to be extremely nervous. The supervisor then asked the claimant to submit to a drug test. The claimant initially agreed but asked for permission to call her union representative. Out of sight of the supervisor, the claimant clocked out for the day. The supervisor found her outside the premises of the building and ordered her to come back inside. The claimant did so under protest. Later, the claimant was tested and cocaine was found in her system. She was then discharged.

     The discharge was not for misconduct. The claimant took the test unwillingly. The employer demanded the claimant be tested because she was acting "nervous." That the claimant acted "nervous" does not give the employer a reasonable suspicion that the claimant was under the influence of illegal drugs. Moreover, the claimant's job of cleaning and refueling buses is not an inherently dangerous occupation. Had the claimant refused to take the test, her probable discharge would not have amounted to misconduct.

   • Reliability of Drug Test

     If the chain of custody of the sample is broken, or the sample is tampered with, or the test result is unreliable, then the discharge would not be for misconduct.

     All tests which find a measurable amount of controlled substances in the claimant's system, and which are used as the basis for a discharge, are rebuttable by the claimant. Tests range from simple chemical tests to sophisticated gas chromatography/mass spectrometry (GC/MS) tests.

     The drug test is only as reliable as:

     • The test administered (RIA, EMIT, mass spectrum, hair, etc.).
     • The chain of custody followed (certification of the correct name for the sample, certification of the custody of the sample taken).
     • The skill and expertise of the laboratory staff.
     • Any mishandling or contamination during the sampling or after the sample is taken.
     • Allowances for false negatives and false positive readings. (For example, poppy seed rolls eaten before a test may display positive results for morphine, and Vick's inhalers may display positive results for L-methamphetamines. Some tests are unable to distinguish the L-methamphetamines from the D-methamphetamines; the D-methamphetamines are the controlled substances.)

     Example - Reasonable Rule, Testing Positive:

     The claimant was a bus driver, and was discharged for testing positive on a drug screen test. The employer's rules were that the drivers were subject to testing for drugs and alcohol. Any positive test were grounds for discharge. These rules were established to conform to federal rules for commercial drivers. The particular test in question was given to the claimant during his bi-annual- annual physical examination which was required. The claimant was aware of the company rule and did consent to the testing. The claimant did not question the results of the test and stated that he could have eaten some cookies which had been laced with marijuana two days before he took his physical examinations and drug test.

     The discharge was for misconduct. The employer's rule is in conformance with federal regulations requiring strict compliance by commercial drivers. The claimant tested positive in violation of the company rule. The claimant did not question the results of the test.

3. The Drug-Free Workplace Act of 1990

   The State Legislature passed this Act in 1990, to be effective January 1, 1991. It requires persons or organizations who are awarded State contracts or grants for property or services to:

   • Notify employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace, and specify the action the employer will take for any violations of the policy;
   • Establish a drug awareness program to inform employees of the dangers of drug abuse, the employer's policies concerning drug abuse in the workplace, any available programs for employee assistance, and any applicable penalties;
   • Give a written copy of the policy to the employee, with the understanding that the employee agrees to abide by the terms of the statement as a condition of employment.

   Applicability of this Act is that the affected employer may be considered to have a substantial interest in maintaining a drug free workplace. Even though this Act does not provide for testing applicants or employees, if this substantial interest of the employer outweighs the privacy expectation of the employee, a discharge for refusing to take the drug test or testing positive would be considered for misconduct.

4. Testing Positive to Preemployment Drug Test

   More and more employers are requiring drug testing as a condition of employment. What if the claimant was discharged because of negative results on his or her preemployment drug test? Title 22, Section 1256-33(c)(1) provides the following general rule:

   In situations involving preemployment activity, the claimant is discharged for conduct occurring before the employment relationship was begun. Usually this is not connected with the most recent work.

   Example - Employee Begins Work Before Results of Drug Test Received:

   The claimant was required to take a preemployment physical that included a blood test for drugs. The claimant began working immediately after the preemployment physical and before the employer had received the results of the tests. The claimant worked for more than three weeks before the employer received the results of the preemployment physical. The claimant tested positive for drugs and was discharged. The claimant told the Department interviewer he was not a frequent user of drugs or alcohol. He said two nights before the preemployment physical he was out with friends celebrating because he got the new job.

   When an employer has an individual begin work prior to receiving the results of the preemployment testing, it is assuming the risk. If the employee is later discharged for positive drug testing on the preemployment physical, the reason for the discharge is not connected with the most recent work and is therefore, not misconduct. In other words, failure to pass a preemployment physical is no more than inability to meet employer requirements.

   If the employer does not hire the claimant due to positive drug testing on a preemployment test, refer to BDG, SW 440, Government Requirements.