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TexLaw, Lawyer
Category: Employment Law
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Experience:  Contracts, Wrongful termination and discrimination
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My unemployment claim was denied for reasons stated as this,

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My unemployment claim was denied for reasons stated as this, “, “terminated for misconduct connected with work, after he tested positive for marijuana after he was involved in an on-duty accident" Because the chemical results were positive they state a preponderance of evidence was established and the employer’s burden of proof was established by the positive test results. However, since the test results were 3 times lower than the levels needed to prove impairment and for a positive chemical test result according to K.S.A 44-706, wouldn’t this mean they did not show evidence? In addition to this, since it was off duty misconduct, a week before the accident, this would not constitute misconduct in connection with work since it did not extend to 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, correct? The Kansas Supreme Court held this in National Gypsum Co. v. State Employment Sec. Bd. of Review, 772 P.2d 786, 244 Kan. 678 (Kan., 1989)

Thank you for your question. I'm afraid your analysis is incorrect. The employer has the right to require its employees to be drug free. The fact that you were not impaired is irrelevant to the fact that by testing positive for marijuana, it violates the employer's drug free policy. Termination under these circumstances would be for cause and would prevent unemployment. All that the employer had to prove was that there was a cause for terminating you through the violation the drug-free policy, not that you were impaired or that the drug use was not done at work.

Customer: replied 3 years ago.

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 understand your argument, and it is a good argument.

However, the unemployment board is going to argue that the decision is correct because they believe that the drug policy is be related to both the work of the employee and the employer's business. If driving is part of the employee's job duties, then this will be a powerful argument that violation of the drug policy disqualifies him from unemployment as a termination for cause.

If you appeal, how do you intend on arguing against this?
Customer: replied 3 years ago.

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.

You know...this might just work! It sounds like a very reasonable and logical argument. I think that you may have a good chance at winning the appeal.

Is there anything else I can do for you?
Customer: replied 3 years ago.

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? :)

Let me do some research on that question and I will get back to you shortly. Don't reply to this message and thanks for your patience.

It is evidence, but it simply is not conclusive evidence

KSA 44-706(b)(2) creates a presumption of employee misconduct which disqualifies an employee from the right to unemployment benefits if there is a positive chemical test for illegal drugs at or above the levels listed in KSA 44-501, which is 115 ng/ml in connection with Marijuana. In a proceeding before the Kansas Employment Security Board of Review to determine whether a former employee is eligible for unemployment compensation, the employer has the burden to establish that the former employee should be disqualified under Kan. Stat. Ann. § 44-706(b), and it must be proven by a preponderance of the evidence. Bull v. Employment Sec. Bd. of Review, 1992 Kan. App. LEXIS 82 (Kan. Ct. App. Jan. 31 1992); Westport Printing, Inc. v. Employment Sec. Bd. of Review, 799 P.2d 1052, 1990 Kan. App. LEXIS 775 (Kan. Ct. App. 1990). Accordingly, one may argue that while there is some evidence of illegal drug use, it was not conclusive evidence which would allow a finding of employee misconduct.

Further ,under Kan. Stat. Ann. § 44-706(b), absent evidence that an employee's drug usage had actual on-the-job impact, an employee's dismissal for failing a urine test does not disqualify the employee from receiving unemployment compensation benefits. Prairieland Processors, Inc. v. Employment Sec. Bd. of Review, 805 P.2d 1261, 1991 Kan. App. LEXIS 79 (Kan. Ct. App. 1991). This means that the employer was required to prove an additional step by a preponderance of the evidence, namely, that the drug usage had actual on the job impact.

Thus, in conclusion, you may argue that the drug test did not conclusively establish misconduct and that there was no evidence offered as to the drug use's on the job impact. Accordingly, the employer has failed to meet its burden of proof.
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