5.5.3 Termination for Substance Abuse

Substance abuse allegations constitute a special case. For UC to be denied following discharge for substance abuse, the employer must prove behavioral effects of alleged intoxication under usual evidentiary standards. Where discharge is based on allegedly positive drug test results, however, alleged test results cannot be considered unless the testing was done pursuant to a written substance abuse rule or policy and performed under certain conditions.1  Even if the statutory requirements are satisfied, if the employer’s test violated its own policies, the test results should not be considered. Many employers fail to present competent (e.g., non-hearsay) evidence.

Refusal to take a drug test required by a proven employer policy is not necessarily misconduct. Refusal on valid constitutional grounds should not result in disqualification. Finally, if an allegedly positive test result was the reason given for discharge, the agency must apply the standards concerning drug testing and cannot use the general misconduct provision to let the employer off the evidentiary hook.

• 1La. R.S. 23:1601(10)(a).