Misconduct MC 270 - Fact Finding Guide

Use of Intoxicants and Drug Testing

A. Use of Intoxicants

1. What was the employer’s policy or rule regarding the use of intoxicants?
2. When was the claimant allegedly intoxicated or when did the claimant use intoxicants?
3. 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:
     1. What made the employer think or state that the claimant was intoxicated or used intoxicants?
     2. Was there a witness who observed the claimant while intoxicated or using intoxicants? If yes, ask to speak with the witness(es).
     3. How long did this person observe the claimant?
     4. How did the claimant walk?
     5. How did the claimant talk?
     6. If the claimant was working while intoxicated, how did the claimant perform his or her duties?
     7. Was the smell of liquor noticeable on the claimant’s breath?
     8. Was there other evidence that the claimant was intoxicated or used intoxicants?
        
        
   • If the claimant consumed alcohol during lunch, rest or similar break periods:
     1. Was there an employer rule that consumption of alcohol during such break periods will result in discharge?
     2. 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.

1. Was the cause leading to the claimant’s discharge related to intoxicants?
2. Did the claimant admit he or she had an irresistible compulsion to use intoxicants?
3. Did the employer present any facts to show that the claimant had a drinking or drug problem?
4. Was there a physician’s statement that the claimant had an irresistible compulsion to use intoxicants, or was addicted to drugs?
5. Was the cause leading to the claimant’s discharge controllable by the claimant?
6. 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?
7. 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?
8. Is the claimant currently receiving, or has the claimant received treatment for his or her addiction? From whom?

C. Drug Testing

1. 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?
     1. Was the chain of custody of the sample broken? Were procedures for the custody of the sample followed?
     2. Could the sample possibly be tampered with?
     3. What drug test was used?
     4. Was the test conducted by an independent laboratory?
     5. Did the test show positive readings? What "cutoff" level was utilized in determining whether the test was positive or negative?
     6. Was the test confirmed by another test?
2. What explanation does the claimant give for the positive readings, if he or she does not admit using the drug?