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But according to law he did not have a positive test result as it says the levels must be 15 ng or higher. His was 3 times lower. The case I cited stated that misconduct has to be in connection with work. If the test results do not fit the levels needed to prove a positive test result, and the fact that the employer allowed him to continue working that day, in fact allowed him to drive the same van that was in the accident to continue driving around performing his job responsibilities, how does this show his job performance was affected and was connected to work? In addition, the police allowed him to drive away as well.
I have appealed and in their brief they never mention anything about the violation of drug policy. They state it was misconduct connected to work due to the positive test result. But in response to your comment on the drug policy, it only states you can not use, distribute, or process drugs while on the job. The misconduct was off duty.
An employee who tested positive for marijuana during an employer's drug test does not fit within the statute disqualifying employees for unemployment compensation benefits because the employer did not meet its burden to prove that the misconduct was "connected with the employee's work" under K.S.A. In other words, the employer failed to prove that the off-the-job misconduct of marijuana use had an actual on-the-job impact.
K.S.A. 2009 Supp. 44-501(d)(2) creates a conclusive presumption of impairment when it is shown that at the time of the employee's injury an employee tests at or above the stated quantitative level for alcohol or drugs. His levels were three times lower
(1) National Gypsum Co. v. State Employment Sec. Bd. of Review, 772 P.2d 786, 244 Kan. 678 (Kan., 1989) an earlier case also dealing with drug testing, the employee had used drugs while off duty. The Kansas Supreme Court held that off-duty drug use cannot be construed as a "willful or intentional failure to perform duties in a satisfactory manner." To exclude a discharged employee from unemployment benefits for off-the-job misconduct, the off-duty misconduct must be work connected and reasonably related to the employer's business. His off duty misconduct does not constitute misconduct in connection with work since it did not extend to his job performance. Therefore it is not work related and is not a violation of duty or obligation reasonably owed to the employer as a condition of employment.
Thank you. My initial question was can a positive test result be evidence that the he was impaired if his levels were lower than levels stated in the law to be considered positive? :)