Effective 01 Oct 2006, see footnote

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 — testing provision not to apply, when — specimens for testing — confirmation tests — prescriptions — section not applicable, when — implementation of testing program. — 1. If a claimant is at work with a detectible amount of alcohol or a controlled substance as defined in section 195.010 in the claimant's system, in violation of the employer's alcohol and controlled substance workplace policy, the claimant shall have committed misconduct connected with the claimant's work.

2. A test conducted by a laboratory certified by the United States Department of Health and Human Services, or another certifying organization so long as the certification requirements meet the minimum standards of the United States Department of Health and Human Services, and the laboratory's trial packet shall be included in the administrative record and considered as evidence.

3. The claimant must have previously been notified of the employer's alcohol and controlled substance workplace policy by conspicuously posting the policy in the workplace, by including the policy in a written personnel policy or handbook, or by statement of such policy in a collective bargaining agreement governing employment of the employee. The policy, public posting, handbook, collective bargaining agreement or other written notice provided to the employee must state that a positive test result may result in suspension or termination of employment.

4. Test results shall be admissible if the employer's policy clearly states an employee may be subject to random, preemployment, reasonable suspicion or post-accident testing. An employer may require a preemployment test for alcohol or controlled substance use as a condition of employment, and test results shall be admissible so long as the claimant was informed of the test requirement prior to taking the test. A random, preemployment, reasonable suspicion or post-accident test result, conducted under this section, which is positive for alcohol or controlled substance use shall be considered misconduct.

5. The application of this section for alcohol and controlled substance testing, relating only to methods of testing, criteria for testing, chain of custody for samples or specimens and due process for employee notification procedures shall not apply in the event that the claimant is subject to the provisions of any applicable collective bargaining agreement, so long as said agreement contains methods for alcohol or controlled substance testing that meet or exceed the minimum standards established in this section. Nothing in this chapter is intended to authorize any employer to test any applicant or employee for alcohol or drugs in any manner inconsistent with Missouri or United States Constitution, law, statute or regulation, including those imposed by the Americans with Disabilities Act and the National Labor Relations Act.

6. All specimen collection for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules for workplace drug and alcohol testing compiled at 49 C.F.R., Part 40. Any employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by regulations of the United States Department of Transportation."Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites. "Chain of custody" refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling, testing, and storing specimens and reporting test results.

7. The employee may request that a confirmation test on the specimen be conducted. "Confirmation test" means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy. In the event that a confirmation test is requested, such shall be obtained from a separate, unrelated certified laboratory and shall be at the employee's expense only if said test confirms the original, positive test results. For purposes of this section, confirmation test shall be a split specimen test.

8. Use of a controlled substance as defined under section 195.010 under and in conformity with the lawful order of a healthcare practitioner, shall not be deemed to be misconduct connected with work for the purposes of this section.

9. This section shall have no effect on employers who do not avail themselves of the requirements and regulations for alcohol and controlled drug testing determinations that are required to affirm misconduct connected with work findings.

10. Any employer that initiates an alcohol and drug testing policy after January 1, 2005, shall ensure that at least sixty days elapse between a general one-time notice to all employees that an alcohol and drug testing workplace policy is being implemented and the effective date of the program.

11. Notwithstanding any provision of this chapter to the contrary, any claimant found to be in violation of this section shall be subject to the cancellation of all or part of the claimants wage credits as provided by subsection 2 of section 288.050.

­­--------

(L. 2004 H.B. 1268 & 1211, A.L. 2006 H.B. 1456)

Effective 10-01-06