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Postive Drug Test

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I have an employee in our MA plant who tested postive for a narcotic can we fire him and not have to pay unemployment?

It’s not possible to comment on the outcome of this particular situation without all the details. However, usually when an employer fires a worker for gross misconduct, the employee is not eligible for unemployment – provided the employee had control over the conduct.

It is good that in this case the employer has objective proof to boost his case, in the form of a positive drug test.

It also matters whether the drug is legal or illegal, whether the employee had a valid reason for taking a prescription drug, and whether the employee used the narcotic after work or during work.

Suppose that an employee used heroin at work, or shortly before coming to work. That would most likely be considered gross misconduct and the employee would not be eligible for unemployment benefits.

Now, suppose an employee who recently had surgery took a prescribed narcotic painkiller at 2 am. The employee reported to work at 9 am and the drug test found traces of the narcotic in the employee’s system.

Some drug tests will reveal traces of narcotics up to 24 hours after they are taken, so it’s important for the employer to have his or her facts straight in this situation.

In some cases, an employer may have to make reasonable accommodations under ADA for an employee who is using prescribed narcotics for a legitimate disability – but that doesn’t appear to be the case here. The ADA doesn’t cover current users of illegal drugs, whether the drug use occurs at work or not.

Having said that, the potential liability of having an employee under the influence of narcotics far outweighs the relatively small increase in unemployment insurance. An employee who is high can cause an accident that might kill an innocent coworker, costing the employer millions of dollars. OSHA reports that alcohol or drugs are involved in the majority of workplace accidents.

For a complete answer on this particular situation, consult a labor law attorney.