What the law says: This matter is covered by Section 29(1)(m) of the Michigan Employment Security Act. The law says that an individual will be disqualified from receiving unemployment benefits if the individual was fired from the job for illegally using or possessing a drug ("controlled substance") at the workplace; for refusing to take a drug test; or for failing a drug test.

For the disqualification to be imposed, the drug test must be given in a non-discriminatory way. To be given in a "non-discriminatory" way, the test must be given impartially and objectively in accordance with a collective bargaining agreement; employer rule, policy, or notice; or a labor-management contract. For example, a drug test may be required after a worker has had an accident at work, or it may be given to workers selected randomly.

Further, a worker who disagrees with the test result and expresses that disagreement to the employer must be given a confirmatory test that also gives a positive result.

A worker who is disqualified from receiving benefits under this provision can requalify for benefits by doing either one, or a combination of both, of the following for 26 weeks:

• Certify to Unemployment Insurance Agency (UIA) that he or she has met all of the requirements to receive a benefit payment (such as being able to work, available for work, and seeking work);
  
  
• Earn at least $153.00 in the week for disqualifications occuring before April 1, 2007; $207 for disqualifications occurrng from April 1, 2007 through January 5, 2008; $213 for disqualifications occurring from January 6, 2008 through January 3, 2009; $220 from January 4, 2009 and thereafter.

However, even after the 26-week requalification period has been satisfied, the worker's original benefit entitlement is reduced by 13 weeks, and no benefits can be paid to the individual based on work with the employer involved in the firing due to the involvement with drugs. Benefits can be paid based only on work with other employers not involved in a drug disqualification (or a disqualification for theft, willful destruction of property, assault and battery, or theft after notice of layoff or discharge).

Examples: The employer asks a worker to take a drug test after the worker has an accident at the worksite. The worker refused and is fired. This worker would be disqualified from receiving unemployment benefits, as the basis for giving the worker the test was the accident, and this is a non-discriminatory basis upon which to test the employee.

If a worker is fired for testing positive for a drug ("controlled substance") for which the worker has a valid prescription and which the worker is using in a medically approved amount, the worker would not be disqualified from receiving unemployment benefits, because the controlled substance would not have been used or possessed illegally.

Proof at the Hearing: If either the employer or worker appeals the case to an Administrative Law Judge, then the employer must prove that the worker used or possessed a drug ("controlled substance") illegally, or that the worker refused or failed a drug test that was administered in a non-discriminatory way.

The Administrative Law Judge may request testimony of the drug-testing laboratory as to the results of the test, the testing method used, and the "chain of custody" of the sample tested. The employer should be prepared to have witnesses available (probably by telephone) from the testing laboratory who can testify as to these matters.

For Further Help: The UIA Advocacy Program can provide assistance to employers and unemployed workers in preparing for Administrative Law Judge and Board of Review hearings on this issue. Call 1-800- 638-3994.

The information on this sheet is intended to provide a general understanding of the subject matter. It does not have the force of law or regulation.