| March 13, 2012

Just say no – to a drug test?

Jobs, jobs, jobs. That is the name of the game in economic development. More jobs, better jobs, lower unemployment, these are all the goals of anyone who wants a better life for the citizens of their state. We continue to fight for less government regulation, lower taxes, and more freedom for entrepreneurs. Policy and legislation are critically important pieces of that puzzle; but just as important is the implementation of that policy. The requirements placed on employers in how they manage their workforce can be costly, and they can sometimes create a very difficult environment. So one of the most important areas where government policy intersects with private enterprise is the area of employment laws and regulations. Operating at that intersection is the Oklahoma Employment Security Commission ("OESC").

OESC is funded by the United States Department of Labor, and its stated purpose is to provide quality service and assistance to Oklahoma businesses and job seekers. OESC collects unemployment insurance taxes from Oklahoma employers to finance payment of unemployment benefits to jobless workers. It maintains the Unemployment Insurance Program to pay unemployment insurance to qualified individuals. An individual is considered qualified for benefits upon being becoming unemployed (and meeting a minimum amount of wages, etc.), but only if that individual was not discharged for willful misconduct.

For example, Oklahoma law clearly provides that an employee discharged on the basis of a confirmed positive drug or alcohol test shall be considered to have been discharged for misconduct and is disqualified for benefits. It sounds simple enough. If an employer, pursuant to its own drug testing policies, asks an employee to take a drug test and that employee either refuses or fails the test, that employee can be fired and unemployment benefits can be denied.

However, as is often the case, it does not play out that way in the real world.

Prior to the last legislative session, agency policies and procedures resulted in an extremely difficult burden of proof for employers, and the cost of hiring an attorney to handle an unemployment claim was in most cases prohibitive. Thus, employers would routinely lose hearings, and benefits would be awarded to employees who were discharged upon failing a drug test. The problem for employers paying unemployment benefits is that the more unemployment claims an employer pays, the higher its unemployment tax rate. Thus, not only does an employee that uses illegal drugs collect unemployment benefits (which are taxpayer funds), the employer is also required to pay a higher tax rate to support these employees. Everyone loses, except the person who broke the law.

In an attempt to address this problem during the last legislative session, the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (the "Act") underwent substantial revision. One of the key changes was to amend 40 OS Section 562 to provide that for an employer to prove misconduct “ . . . the employer need only provide proof of a testing policy and either a refusal to take a drug or alcohol test or a positive test result."

Unfortunately, the OESC’s interpretation of those recent amendments to the Act has made it more difficult for employers to terminate an employee who tests positive for drug use. OESC has interpreted the Act to now require consent from the employee before the results of the drug test can be admitted into evidence at the hearing. If an employee does not want the results of the test admitted, they need only refuse to give permission. This puts quite an unfortunate spin on the old phrase, “just say no.”

Accordingly, an employer is now faced with a very difficult dilemma.

If it terminates an employer for using illegal drugs, the employee will receive taxpayer funded benefits and the employer's tax rate will rise.
If the employer chooses to retain the employee, it now has an employee on its workforce that has committed illegal acts through drug use. This will likely decrease productivity, and it is an incredible safety hazard, especially in certain industries.
Surely, it was not the Legislature’s intention to put business owners in such a predicament. In the very least, it provides an incredibly difficult environment in which to operate a business. In many of these circumstances, drug use is a crime for which the employee could be criminally prosecuted. Yet the employer is the one being punished through increases in its unemployment tax rates, and taxpayer dollars are being handed out to employees engaging in the illegal conduct. This goes against OESC's purpose and mission of avidly supporting Oklahoma's employer community. It goes against the obvious intention of the Legislature. It also goes against what hardworking Oklahomans know is right. It should also be noted that the hearing officers that handle the appeals filed by an employer or employee are not bound by the OESC's policies on this issue. Thus, there is hope that a hearing officer, acting as an independent review officer, will take a close look at this issue.

One of my favorite statesmen is fond of saying that any government’s job is to “stay out of the way” of private enterprise because business owners and taxpayers are the real economy. They are providing economic growth and better lives for our citizens. As our statewide elected officials and legislators work toward pro-growth policies that create a business friendly environment in Oklahoma, let’s also make sure they take time to see that those policies are implemented correctly.

A good start would be to clear up this problem and make sure those being punished are the ones who actually broke the law.

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