Thursday, December 08, 2005

UC - willful misconduct - alcohol

Brannigan v. UCBR - Commonwealth Court - December 8, 2005

Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.

Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m

The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.

The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."

The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).

The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]

The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)

Donald Marritz
MidPenn Legal Services