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Hamilton v. Unemployment Compensation Board of Review12/8/2005
Connie M. Hamilton (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying Claimant benefits pursuant to the Unemployment Compensation Law (Law). We reverse.
Claimant was employed for twenty-seven years as a custodian at an elementary school for the Loyalsock School District (Employer) when, on January 14, 2005, she suffered an eye injury in the work place. Upon seeking treatment for that injury, Employer requested that Claimant take a drug and alcohol screening test, in conformance with Workers' Compensation regulations and/or policy. Employer's independent, non-Workers' Compensation related drug and substance abuse policy prohibits, inter alia, the use of a controlled substance in the work place, but does not address or apply to use not occurring on the work premises.
Employer's policy also neither mandates nor addresses drug screen testing. When faced with Employer's Workers' Compensation-related drug test request, Claimant stated to Employer that she did not wish to pursue a Workers' Compensation claim or coverage in the wake of her injury, and declined to submit to the test.
Employer proceeded to continue to subsequently request the drug screening test during the following week. On January 26, 2005, Claimant submitted to the drug and alcohol screening test. On February 1, 2005, Employer informed Claimant that she had tested positive for the presence of marijuana. Claimant then admitted to Employer that she had used a small amount of marijuana on the evening of January 14, 2005. Thereafter, Employer terminated Claimant's employment, citing as its justification insubordination and violation of Employer's drug and substance abuse policy.
Claimant thereafter applied for benefits under the Law at the Scranton Unemployment Compensation Service Center, which denied benefits under Section 402(e) of the Law. Claimant appealed therefrom, and a hearing was held before a Referee. By decision and order mailed March 31, 2005, the Referee reversed the Service Center's determination, and granted benefits to Claimant. The Referee reasoned, inter alia, that Employer had not established that the Claimant was aware of the unwritten student policy extending to employees that provided for expulsion for a positive drug test, that Employer had not established that its request to undergo testing was reasonable or that Claimant's initial refusals to submit thereto constituted insubordination, or that Claimant's admission of use of marijuana outside of the workplace on a Friday evening constituted use at the workplace thereafter in violation of Employer's policy. Additionally, in response to Employer's argument, the Referee reasoned in relevant part that Employer had not established that Claimant's off duty marijuana use had affected her ability to perform her work duties, and that therefore Section 3 of the Law was inapplicable. Employer appealed the Referee's decision and order to the Board.
43 P.S. ยง 802(e).
The Board, by order and decision mailed June 3, 2005, reversed the Referee's order and denied benefits. The Board reasoned, inter alia, that Employer regularly drug tested injured employees pursuant to Workers Compensation regulations, that the test in this matter was therefore a reasonable action, and that the presence of any amount of marijuana in Claimant's system constitutes use thereof in employer's work place. The Board concluded that Claimant was ineligible for benefits under three sections of the Law: 1.) pursuant to Section 402(e) generally, due to Claimant's violation of Employer's written policy in her "use" of controlled substances at the work place in the form of the presence of d
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