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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Terminating the Employee Who Fails Random Drug Testing in the Workplace

In a recent decision, Virginia Employment Commission v. Community Alternatives, Inc. and April L. Collier, the Virginia Court of Appeals overruled the Virginia Employment Commission's position that in order to establish worker misconduct for failing a drug test, the employer must include in evidence a certification regarding the chain of custody of the drug test.   

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The case centered around Community Alternatives, Inc.'s ("CA") "drug-free workplace" policy. Under the policy, employees agreed to refrain from usage of illegal drugs and agreed to submit themselves to random drug testing. In 2007, April Collier was hired by CA.  When hired she signed the policy agreeing to the "drug-free workplace" policy. 

In September of 2008, Collier was randomly tested for drugs.  She tested positive for marijuana and was subsequently fired for violating the policy.  She filed a claim for unemployment benefits with VEC.  VEC ultimately awarded benefits despite CA's objections.

CA argued that Collier was ineligible for benefits under the Virginia Code.  VEC disagreed, finding that to establish a case for misconduct, CA was required to file a chain of custody affirmation.  Because one was not filed timely, misconduct could not be found under the statute.

The Circuit Court reversed the VEC's decision, finding that filing a chain of custody affirmation is not a requirement of the statue in order to establish misconduct.  In its decision, the Court stated that the "confirmed positive test" must satisfy three requirements:

  1. the test was conducted pursuant to a "known workplace drug policy"
  2. the testing and sampling were performed "in accordance with scientifically recognized standards", and
  3. the testing lab was "accredited" or the test was a DOT qualified drug screen.

The Court further stated that if the employer can provide evidence to support these three requirements, it then becomes the burden of the employee to present "mitigating circumstances" that can be considered by the VEC in determining whether misconduct occurred.

This case was appealed to the VA Court of Appeals who affirmed the Circuit Court decision in finding in favor of the employer.

While under the statute, establishing the chain of custody for drug test results is not required to establish a case for misconduct, it is good practice to keep these records.  In the case, the VEC argued strongly that chain of custody was a requirement of the statute. 

Even though the Court ultimately found that chain of custody evidence is not required to establish misconduct under the statute, to avoid the lack of this evidence being considered a "mitigating factor" it is a good idea to have the chain of custody established and certified.

Additionally, if an employer is going to enact a random drug screening policy during employment, these basic guidelines should be followed:

  • Establish a "drug-free workplace" policy.  Make sure it is signed by every employee as a separate document on the first day they are hired.  Is a good practice to include it in application materials.
  • When tests are administered, have the administration conducted by an independent third party.  Have the third party control the process and provide a certification for chain-of-custody as well as the results.
  • Ensure that those conducting the testing and the lab where the tests are evaluated are properly certified. 
  • Keep records and results confidential.  Establish a testing consent form.  Form should allow the lab to release results to the employer and employee and if necessary agency or court handling a claim that arises due to the results of the test.