Tuesday, June 18, 2013

UC - "substance abuse" include alcohol - UC Law sec. 402 (e.1)

Dillon v. UCBR – Cmwlth Court – June 18, 2013

Employer discharged Claimant fortesting positive for alcohol in violation of its substance abuse policy. Claimant petitions for review of an order of the UCBR that affirmed, as modified, the decision of a referee and denied him unemployment compensation benefits under Section 402(e) of the UC Law, the general willful misconduct provision, instead of Section 402(e.1),  the specific willful misconduct provision pertaining to an employee’s failure to submit to and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy.

By way of background, the UC Service Center and the referee initially determined Claimant’s eligibility for benefits under Section 402(e.1), but the Board on appeal remanded the matter to place Section 402(e) at issue, concluding that alcohol testing was outside the purview of Section 402(e.1).  Because Claimant’s eligibility should have been analyzed under Section 402(e.1), we conclude that the Board erred in remanding this matter. Nonetheless, we affirm its order denying Claimant benefits.

Claimant signed a last-chance agreement subjecting him to post-rehabilitation testing for twelve months and advising him that another positive BAC test would result in disciplinary action up to and including discharge from employment.  In September 2011, Claimant tested positive for a BAC in excess of 0.02%. The following month, Employer discharged him for violating its substance abuse policy.

The court reiterated its prior holdings that the proper provision under which to analyze discharges where an employee fails to submit to and/or pass a drug test is Section 402(e.1) and not Section 402(e). Architectural Testing, Inc. v. UCBR, 940 A.2d 1277, 1280-81 (Pa. Cmwlth. 2008); Turner v. UCBR, 899 A.2d 381, 384 (Pa. Cmwlth. 2006); UGI Utils., Inc. v. UCBR, 851 A.2d 240, 245 (Pa. Cmwlth. 2004). Most notably, in Brannigan v. UCBR, 887 A.2d 841 (Pa. Cmwlth. 2005), the Court analyzed an alcohol-related violation of a substance abuse policy under Section 402(e.1). Notwithstanding these previous decisions, however, the Board suggests that the legislature did not intend to include alcohol within the purview of Section 402(e.1) because it makes no specific reference to alcohol in that provision.  The court rejected that position.

Section 402(e.1) provides that that an employee shall be ineligible for compensation for any week

[i]n which his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement.
While it is true that the legislature did not include the word alcohol in Section 402(e.1), the court concluded that interpreting that provision to exclude alcohol would render an unreasonable result, fail to give effect to all of the words therein and fail to promote the public interest contrary to the edicts of Sections 1922(1), (2) and (5) of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1922(1), (2) and (5).   Interpreting Section 402(e.1) to exclude alcohol would render an unreasonable result because many employers when crafting their substance abuse policies equate alcohol with drugs as a substance that employees can abuse to the detriment of other employees, the company and the public at large.  Giving effect to all of the words in Section 402(e.1), including the phrase “substance abuse,” the court concluded that the legislature intended to include alcohol as a substance that is subject to abuse within the meaning of that provision. 1 Pa. C.S. § 1922(2) (presumption that legislature intends entire statute to be effective and certain).

The record supports the Board’s finding that Employer had an established substance abuse policy and that, pursuant thereto, Claimant was operating under a last-chance agreement. Specifically at issue, therefore, is whether Employer proved that Claimant violated that policy.  The court found that that Employer met its burden.