From the Kansas Department of Labor publication K-OA-P 02 (7-10) “Unemployment Insurance Appeals Hearing Instructions”
: In order to “qualify” for unemployment insurance benefits, an employee must either have voluntarily quit for one of the “good cause” reasons set forth in the Act that is attributable to the work or employer or have been discharged under circumstances that do not meet the definition of “misconduct connected with the work” (K.S.A. 44-706 (a)(b)). “Qualification” is generally based on the reason the employee separated from his or her last employer.
Misconduct Connected With the Work:
“Misconduct connected with the work” is
generally defined by statute to be a violation of a duty or obligation reasonably owed to the employer as a condition of employment (K.S.A. 44-706 (b)). Benefits will be paid to a terminated employee unless the termination was for reasons that meet that definition. There are several reasons for which an employee may be lawfully terminated that would not meet that definition. The burden of proving misconduct connected with the work is on the employer.
Burden of Proof:
The “Burden of Proof” is a term used to describe the standard that will be used to determine if a party has proven their case and which party bears the burden of proof. Who bears the burden of proof can change during the course of a hearing. However, as a general rule, the employer bears the burden of proof in a discharge case to show the employee was discharged for misconduct connected with the work and the employee bears the burden of proof in a voluntary quit case to show he or she had one of the twelve (12) reasons listed above for doing so.
Intoxicants in the Workplace as Misconduct Connected with the Work:
As in all discharge cases, the burden of proof is on the employer to prove the termination of employment was for misconduct connected with the work. In the case of termination for intoxicants in the workplace, further definitions of what constitutes misconduct connected with the work are found at K.S.A. 44-706 (b)(2).
In general, it is considered “conclusive evidence” of misconduct connected with the work if the terminated employee was either “impaired by” or engaged in the “use of” drugs or alcohol “while working.” This means that, if the employer can prove the employee did use or was impaired by drugs or alcohol while working, the employee will be disqualified from receiving unemployment insurance benefits. The “possession” of either drugs or alcohol is considered “prima facie” evidence of misconduct connected with the work, which means the employee will likely be disqualified from receiving benefits, but could possibly still receive them if there is a good explanation for the possession.
As noted above, the burden of proof is on the employer to establish the factual basis for a finding of misconduct connected with the work. “Evidence” to meet that burden could include either physical evidence of “use,” “impairment” or “possession,” such as admission by the employee, eyewitness accounts, physical symptoms, etc., or by legitimate, chemical screening test results. Evidence submitted should include all relevant documentation such as drug testing policies relied upon in the discharge and acknowledgement of its receipt, actual test results showing levels of concentration and confirmations, “chain of custody” papers linking the test sample to the test results, etc.
includes, but is not limited to, tests of urine, blood and saliva. A “positive” chemical test result, for purposes of proving misconduct connected with the work, must meet certain concentration levels. Tests involving “controlled substances” must equal or exceed concentration levels set forth in K.S.A. 44-501 and its amendments. “Breath test” concentration levels must equal or exceed 0.04 grams of alcohol per 210 liters of breath. Such a “positive” test is “conclusive” evidence of misconduct connected with the work.
Chemical test results must meet several criteria before they are admissible into evidence to prove misconduct connected with the work.