v. UCBR – Cmwlth Court – June 18, 2013
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
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.
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.
402(e.1) provides that that an employee shall be ineligible for compensation
for any week
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
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).
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