Section 30 Separations Involving Drugs or Alcohol

• Library: Employer-Employee Law 2008

Section 288.045, RSMo Supp. 2007, was first added to the Missouri Employment Security Law, Chapter 288, RSMo, by House Bills 1268 & 1211 and was effective January 1, 2005. It was subsequently amended by House Bill 1456, which was effective October 1, 2006. The provision provides employers with a roadmap of what needs to be shown to disqualify a claimant for drug or alcohol use. A claimant found “in violation of this section shall be subject to the cancellation of all or part of the [claimant’s] wage credits as provided by subsection 2 of section 288.050.” Section 288.045.11.

To establish that a claimant was “at work” with a detectable amount of alcohol or a controlled substance, the employer must show the following:

• The test must be conducted by a laboratory certified by the United States Department of Health and Human Services (HHS) or another certifying organization that meets the minimum standards of HHS. “[T]he laboratory’s trial packet shall be included in the administrative record and considered as evidence.” Section 288.045.2

• “The claimant must have previously been notified of the employer’s alcohol and controlled substance workplace policy” by its conspicuous posting at the workplace or in a written personnel policy or handbook or by a statement in a collective bargaining agreement. “The policy . . . must state that a positive test result may result in suspension or termination of employment.” Section 288.045.3

• The test results are admissible and positive results shall be considered misconduct if the policy clearly states that an employee may be subject to random, preemployment, reasonable suspicion, or post-accident testing. Section 288.045.4

• Section 288.045 does not apply to testing of a claimant subject to a collective bargaining agreement if that agreement contains testing provisions that meet or exceed the minimum standards provided for by the section. Section 288.045.5

• Specimen collection shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules compiled at 49 C.F.R. Part 40. Section 288.045.6.

• The claimant can request a confirmation test, which is a split specimen test. The claimant is only required to pay for the test if it confirms the original positive test. Section 288.045.7.

• Use of a controlled substance, as defined in § 195.010(5), RSMo Supp. 2007, under and in conformity with a lawful order of a healthcare practitioner shall not be deemed...