Skip to main content

If we fire an employee because of a failed drug test will we still have to pay unemployment?

Auburn, CA |

My husband and I have a small business in Calif. One of our employees has been acting irrational, and approached another employee and asked if he had any drugs for sale. Because of this incident we asked him to go get drug tested. He failed his drug test for both ampehtamine, and methanphetamines. Can we fire him because of this and NOT have to pay unemployment? Bottom line we don't want to pay him unemployment - what do we need to do in order to avoid this?

+ Read More

Attorney answers 4


Termination under the circumstances you describe would most likely constitute termination for "misconduct," resulting in the denial of unemployment. See here for more information:

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.


According to the EDD Unemployment Guide the following two questions must be answered in the affirmative to establish misconduct connected to the work: A finding of misconduct disqualifies an applicant from unemployment benefits.

"When the claimant was discharged because he or she took a drug test and tested positive, the following questions should be considered:

a. Was it reasonable for the employer to require the claimant to take the drug test? (Whether an employer's requirement to test is reasonable is discussed in C.1., Refusal to Take Drug Test above.)

b. How reliable was the drug test?"

This response does not create an attorney-client relationship. Unless you are already a client of the Law Offices of John Valentine, Jr., pursuant to an executed engagement agreement, you should not use, interpret, or rely on this response as legal advice or opinion. Do not act on any information in this response without seeking legal advice.


In addition to the information my colleagues provided you with, you should know that you do not pay employees their unemployment benefits. The benefits come from a reserve account you have already paid into. The amount you pay into the reserve account depends on how much employee turnover you have with your company. If this is an isolated termination, is probably will not effect your rates, if at all.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


I am assuming that this drug test was administered by a credible agency. In that case the methamphetamine is cause to terminate. However if there is a false positive for methamphetamine in his system and he is properly on amphetamines such as Adderal for ADD or ADHD then this could lead to a discrimination issue based on a medical condition. It is unlikely, but something to think about when terminating an employee. Just make sure that the company you use to drug test is credible.