New Law Tightens Unemployment Claims
Missouri business owners get relief from unemployment claims involving drugs and alcohol or absenteeism and tardiness.

By John Vering

On June 14, Missouri Governor Matt Blunt signed House Bill 1456 into law, which will prevent employees discharged for using drugs and alcohol and employees discharged because of absenteeism and tardiness from collecting unemployment compensation. While the law doesn't take effect until Oct. 1, employers must have their policies in order before they can take advantage of this new law.

Thresholds for Marijuana and Alcohol Use Eliminated
Prior law said that if a workplace drug test disclosed marijuana, the test must show at least 50 nanograms per milliliter before it was considered a detectable amount of marijuana to constitute misconduct in connection with an employee's work. This misconduct could disqualify an employee from unemployment compensation benefits. Similarly, prior law said that the blood alcohol level had to be .08 or more before it was considered a detectable amount. The new law strikes those minimum requirements.

Cause to Test No Longer Required If Policy Provides for Testing
Under prior law, to utilize drug and alcohol tests to disqualify an employee from unemployment compensation benefits, the employer had to have sufficient cause to suspect alcohol or controlled substance use by the claimant. Under the new law, test results are admissible if the employer's policy clearly states that an employee may be subject to random, pre-employment, reasonable suspicion or post-accident testing.

Pre-employment Positive Drug Test Disqualifies Employee from Unemployment Benefits
The Missouri legislature also acted to plug a loophole in the prior law regarding pre-employment testing. Under prior law, if an applicant was put to work before the employer had received the results of a positive pre-employment drug and alcohol test, the person was eligible for unemployment benefits. Now, if the pre-employment drug and alcohol test comes back positive, the employee can be discharged and is not entitled to unemployment compensation benefits, so long as the applicant had been informed of the drug/alcohol test requirement prior to taking the test.

Change in Wording Required for Drug Testing Policies
Prior law provided several requirements before a positive drug or alcohol test result could be considered misconduct, and therefore disqualify an employee from unemployment compensation benefits. One of those requirements under prior law was that the policy was required to state that "a positive test result shall be deemed misconduct and may result in suspension or termination of employment." The new law eases employers' requirements on this point by providing:

"The policy, public posting, handbook, collective bargaining agreement or other written notice provided to the employee must state that a positive test result may result in suspension or termination of employment."

It Is Now Easier to Deny Benefits to Employees Discharged for Absenteeism and Tardiness
Under the old law, the burden of proof was on the employer to prove that a pattern of absenteeism or tardiness amounted to misconduct.

Under the new law, absenteeism or tardiness may constitute "a rebuttable presumption of misconduct," regardless of whether the last incident alone constituted misconduct, if the discharge was the result of a violation of the employer's attendance policy, provided the employee had received knowledge of such policy prior to the occurrence of any absence or tardy upon which the discharge is based.

This effectively shifts the burden of proof to the employee who is absent or tardy to show that his or her conduct did not amount to misconduct and permits the employer to prevail by proving a violation of its attendance policy without having to prove a pattern of absenteeism and/or tardiness.

By having your drug testing and attendance policies reviewed by someone familiar with these new legal requirements, you will be in a better position to deny unemployment benefits to persons testing positive for drugs or alcohol and persons who are absent from and/or tardy arriving at work.

John Vering is a partner practicing employment law at Armstrong Teasdale LLP. You can contact him at (816) 221-3420 or at .