288.045. Misconduct connected with the claimant's work, when--controlled substance and blood alcohol content levels--notice--tests conducted, when--violation, penalty--preemployment testing--testi
Misconduct connected with the claimant's work, when--controlledsubstance and blood alcohol content levels--notice--testsconducted, when--violation, penalty--preemploymenttesting--testing provision not to apply, when--specimens fortesting--confirmation tests--prescriptions--section notapplicable, when--implementation of testing program.
288.045. 1. If a claimant is at work with a detectible amount ofalcohol or a controlled substance as defined in section 195.010, RSMo, inthe claimant's system, in violation of the employer's alcohol andcontrolled substance workplace policy, the claimant shall have committedmisconduct connected with the claimant's work.
2. A test conducted by a laboratory certified by the United StatesDepartment of Health and Human Services, or another certifying organizationso long as the certification requirements meet the minimum standards of theUnited States Department of Health and Human Services, and the laboratory'strial packet shall be included in the administrative record and consideredas evidence.
3. The claimant must have previously been notified of the employer'salcohol and controlled substance workplace policy by conspicuously postingthe policy in the workplace, by including the policy in a written personnelpolicy or handbook, or by statement of such policy in a collectivebargaining agreement governing employment of the employee. The policy,public posting, handbook, collective bargaining agreement or other writtennotice provided to the employee must state that a positive test result mayresult in suspension or termination of employment.
4. Test results shall be admissible if the employer's policy clearlystates an employee may be subject to random, preemployment, reasonablesuspicion or post-accident testing. An employer may require apreemployment test for alcohol or controlled substance use as a conditionof employment, and test results shall be admissible so long as the claimantwas informed of the test requirement prior to taking the test. A random,preemployment, reasonable suspicion or post-accident test result, conductedunder this section, which is positive for alcohol or controlled substanceuse shall be considered misconduct.
5. The application of this section for alcohol and controlledsubstance testing, relating only to methods of testing, criteria fortesting, chain of custody for samples or specimens and due process foremployee notification procedures shall not apply in the event that theclaimant is subject to the provisions of any applicable collectivebargaining agreement, so long as said agreement contains methods foralcohol or controlled substance testing that meet or exceed the minimumstandards established in this section. Nothing in this chapter is intendedto authorize any employer to test any applicant or employee for alcohol ordrugs in any manner inconsistent with Missouri or United StatesConstitution, law, statute or regulation, including those imposed by theAmericans with Disabilities Act and the National Labor Relations Act.
6. All specimen collection for drugs and alcohol under this chaptershall be performed in accordance with the procedures provided for by theUnited States Department of Transportation rules for workplace drug andalcohol testing compiled at 49 C.F.R., Part 40. Any employer that performsdrug testing or specimen collection shall use chain-of-custody proceduresestablished by regulations of the United States Department ofTransportation. "Specimen" means tissue, fluid, or a product of the humanbody capable of revealing the presence of alcohol or drugs or theirmetabolites. "Chain of custody" refers to the methodology of trackingspecified materials or substances for the purpose of maintaining controland accountability from initial collection to final disposition for allsuch materials or substances, and providing for accountability at eachstage in handling, testing, and storing specimens and reporting testresults.
7. The employee may request that a confirmation test on the specimenbe conducted. "Confirmation test" means a second analytical procedure usedto identify the presence of a specific drug or alcohol or metabolite in aspecimen, which test must be different in scientific principle from that ofthe initial test procedure and must be capable of providing requisitespecificity, sensitivity and quantitative accuracy. In the event that aconfirmation test is requested, such shall be obtained from a separate,unrelated certified laboratory and shall be at the employee's expense onlyif said test confirms the original, positive test results. For purposes ofthis section, confirmation test shall be a split specimen test.
8. Use of a controlled substance as defined under section 195.010,RSMo, under and in conformity with the lawful order of a healthcarepractitioner, shall not be deemed to be misconduct connected with work forthe purposes of this section.
9. This section shall have no effect on employers who do not availthemselves of the requirements and regulations for alcohol and controlleddrug testing determinations that are required to affirm misconductconnected with work findings.
10. Any employer that initiates an alcohol and drug testing policyafter January 1, 2005, shall ensure that at least sixty days elapse betweena general one-time notice to all employees that an alcohol and drug testingworkplace policy is being implemented and the effective date of theprogram.
11. Notwithstanding any provision of this chapter to the contrary,any claimant found to be in violation of this section shall be subject tothe cancellation of all or part of the claimants wage credits as providedby subsection 2 of section 288.050.
(L. 2004 H.B. 1268 & 1211, A.L. 2006 H.B. 1456)Effective 10-01-06