Tuesday, January 17, 2012

UC - refusal of drug-testing

Keeler Transport v. UCBR - January 9, 2012 - unreported memorandum decision.

Claimant held ineligible for UC because of failure to immediately report for drug testing when instructed to do so.

In UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa. Cmwlth. 2004), this Court held that Section 402(e.1) of the Law governs discharges related to drug tests and not the general willful misconduct discharge governed by Section 402(e) of the Law. UGI Utilities, 851 A.2d at 245. See also Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1281 (Pa. Cmwlth. 2008) (noting both the failure of a drug test, and the refusal to take a drug test, are now analyzed under Section 402(e.1)). Accordingly, Section 402(e.1) requires an employer to (1) demonstrate that it adopted a substance abuse policy; and (2) that the employee violated that policy. UGI Utilities, 851 A.2d at 252. Further, the policy permitting drug and alcohol testing need not be detailed. Architectural Testing, 940 A.2d at 1282. Once the employer establishes the policy, the burden shifts to the employee to show that the policy was either trumped by a statute or collective bargaining agreement. UGI Utilities, 851 A.2d at 252.

Here, Employer’s substance abuse policy states that [r]efusal to submit to a requested alcohol or drug test is grounds for immediate discharge. Refusal includes refusing to report immediately to the testing location upon request …. The Federal regulation, by which Employer is bound, also states that drivers must report immediately for testing. 49 C.F.R. §382.305(l). The Federal regulation provides that an employee is considered to have refused a drug test when he "fail[s] to appear for any test . . . within a reasonable time, as determined by the Employer, . . . after being directed to do so by the employer." 49 C.F.R. §40.191(a)(1)

Claimant did not comply with the requirement to proceed immediately to the testing facility, i.e., first thing Monday morning. Telling Employer that he would go for the drug screen after he returned from Massachusetts constitutes a "refusal" as that term is defined in Employer’s substance abuse policy and in FMCSA regulations