September 2018 Briefly: An Unemployment Case Analysis
Case Analysis: Claimant discharged after a positive drug test result, but still allowed benefits.
The claimant was discharged after a positive marijuana drug test result. She was allowed benefits upon finding that she was discharged, but not for misconduct connected with the work. The employer appealed. A hearing was scheduled before an administrative law judge (ALJ).
At the Hearing
The Employer’s Evidence: The employer’s witnesses testified that the claimant, a retail clerk, was given the employer’s drug testing policy at hire. The policy provided for post-accident testing, and for discharge in the event of a positive result. It also provided that acceptable documentation can prove that the claimant holds a prescription for a substance that shows as positive in a test.
The claimant slipped and fell at work and was sent for a drug test pursuant to the policy. The claimant’s test returned as positive for marijuana, and she was sent for a follow-up test. The claimant indicated to Human Resources that she had obtained authorization from the state to use marijuana for medical purposes. She was told to report that information to the Medical Review Officer (MRO). They would consider it when analyzing the results of the test. When the confirmatory test came back as positive for marijuana the claimant was discharged.
The Claimant’s Evidence: The claimant testified that she used a topical cream, which was made from the marijuana plant for pain. She testified that she had a prescription to use the cream, which did not contain any of the substances that would cause intoxication. The claimant testified that she informed the MRO. However, neither he nor the employer requested proof of her prescription, and the test was still returned as positive. The claimant testified that she was not impaired by marijuana at work.
The Hearing Decision
The ALJ found that the claimant was not discharged for misconduct connected with the work. Thus, she was allowed benefits. They also found that the employer failed to prove misconduct. How? Because the employer failed to prove that the claimant was impaired at work. The decision was also in the claimant’s favor because the employer failed to follow its own policy. It clearly stated that prescriptions for medications would be taken into account during a drug test. The employer appealed, arguing that Federal law still provides that marijuana use is illegal. And that because of this, the claimant should have been disqualified from benefits.
The Board of Review Decision
The Board of Review (BOR) agreed with the ALJ’s decision. The claimant was allowed unemployment benefits. A state law was passed allowing medical marijuana use, which also provided that an employer may not penalize a medical marijuana card holder for a positive drug test result. The employer could have proven misconduct if the employer was able to prove that the claimant used, was in possession of, or was under the influence of marijuana while at work. The employer did not prove any of those elements, so the ALJ’s decision remained in effect.
- In states that allow medical or recreational marijuana, it might be necessary to prove that the claimant was impaired at work for a finding of misconduct. In this case, the ALJ found that the employer failed to prove that the claimant was impaired at work, despite the fact that the test was administered because the claimant fell at work. In a similar case, be prepared to provide evidence and testimony showing that the claimant’s appearance and behavior indicated that she was under the influence of something at work, and that her impairment had, or could have, affected her job performance.
- An employer’s failure to follow its own policy might result in an award of benefits to a claimant. The employer has the burden to prove that the claimant was discharged for misconduct for a claimant to be disqualified from benefits. One of the elements generally necessary is for the employer to prove that the claimant was aware that the final incident could result in discharge. If an employer does not follow its own policy, the state may find that the claimant was not reasonably on notice that discharge could result from her actions. If it is ever necessary to deviate from a written policy, be prepared to provide proof that the claimant was specifically on notice that the final incident could result in discharge. This could be done with warnings, notice of a change in policy, etc.
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