New Unemployment Compensation Defenses For Missouri Employers

On July 1, 2004, a new Missouri law was passed making significant changes in the state’s unemployment compensation statutes. Included in the changes are new provisions relating to alcohol and drug testing and attendance misconduct. The new provisions can be helpful to employers that create certain alcohol and drug testing and attendance misconduct policies.

Alcohol and Drug Abuse

Under the current Missouri unemployment compensation statutes and case law, an employer had great difficultly seeking to prove an employee who failed an alcohol and/or drug test committed misconduct connected with his work. The employer was required to demonstrate that the discharge of the employee resulted from work-related actions brought on by the employee’s impairment. In Bolder Elec. Co. v. Raylene Reasoner and Division of Employment Security, 66 S.W.3d 130 (Mo. Ct. App. 2001), the court held a claimant could not be disqualified from receiving unemployment benefits for illegal drug use even though her off-duty illegal drug use violated the company’s substance abuse policy. The court based its decision on the fact the employer could not prove the employee’s off-duty use of illegal drugs impacted her ability to perform her on-the-job responsibilities.

The new Missouri unemployment compensation law defines alcohol and/or drug use as misconduct when the employee had knowledge of a policy prohibiting the use. Under the new statute, an employer seeking to disqualify a claimant from receiving unemployment benefits for alcohol or drug use needs to establish: (1) the employer has an alcohol and controlled substance workplace policy; (2) the employer previously gave the claimant notice of its alcohol and controlled substance workplace policy; (3) the policy specifically states that a positive test shall be deemed misconduct and may result in suspension or termination; and (4) the claimant tests positive for drug or alcohol use under specific standards set out in the statute. In addition, Missouri employers who want to rely on the new alcohol and drug use misconduct must include specific new provisions and procedures in their drug and alcohol testing policies, including specific causation, certification and chain of custody requirements.

Attendance Misconduct

The new unemployment compensation law also makes it easier for employers to establish misconduct for attendance or excessive absenteeism. Under the current law, the last incident of absenteeism or tardiness must by itself constitute misconduct to disqualify the employee for unemployment compensation, even if the employer establishes an employee’s pattern of absenteeism.

Under the new law, a pattern of absenteeism or tardiness may alone constitute misconduct regardless of the severity of the last incident. Under the new law the employer may show that the pattern of absenteeism violated the employer’s attendance policy. The employer must have an attendance policy that defines and gives the employee notice of what is considered excessive absenteeism under the policy.