If we fire an employee due to poor performance and proof of using prescription drugs while on the time clock, is he eligible to collect unemployment?
This will depend on the state that you are in, and the circumstances of this case. You are probably much better off addressing the performance issue, rather than the prescription drug problem. Normally to collect unemployment an employee must be out of work “through no fault of his or her own.” An employee who was able to complete his work but willfully refused to would not be eligible for unemployment. But, an employee who was unable to complete his work would be eligible for unemployment. If the employee’s “poor performance” was not a result of his own willful actions, he would also qualify. For example, a salesperson could be terminated for having low sales for 3 months. The employee could legitimately argue that whether or not the customer buys something is out of his control, and he would likely be awarded unemployment benefits.
An employee who uses illegal drugs at work can almost always be fired. However, an employee with an addiction to prescribed drugs may well have a disability covered under the Americans with Disabilities Act. The ADA would require accommodations in that case, including time off for rehab. However, if the employee is working, he can be held to the same performance standards as any other employee in the same job.
If the employee is using drugs prescribed by a doctor in the way they are intended, for a legitimate medical reason, and his performance is adequate, you may not have cause to fire him at all. In other words, the ADA prohibits an employer from firing someone simply because they require medication.
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