Glide Lumber Products Co. v. Employment Div.

• Decision Date: 05 August 1987
• Docket Number: AB-1309
• Citation: 741 P.2d 907,86 Or.App. 669
• Parties: GLIDE LUMBER PRODUCTS CO., Petitioner, v. EMPLOYMENT DIVISION and Gregory L. Smith, Respondents. 86-; CA A41932.
• Court: Oregon Court of Appeals

Page 907

741 P.2d 907

86 Or.App. 669

GLIDE LUMBER PRODUCTS CO., Petitioner, v. EMPLOYMENT DIVISION and Gregory L. Smith, Respondents.

86-AB-1309; CA A41932.

Court of Appeals of Oregon.

Argued and Submitted June 15, 1987.

Decided Aug. 5, 1987.

Galen L. Bland, Portland, argued the cause and filed the brief for petitioner.

Christine Chute, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Div. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Dwayne Murray, Eugene, argued the cause for respondent Gregory L. Smith. On the brief were Roger Ousey, and Bischoff & Strooband, P.C., Eugene.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Employer seeks review of EAB's award of unemployment benefits to claimant, whom employer discharged after he tested positive for marijuana in a random drug test required by employer. The issue is whether an employe's off-duty use of a controlled substance, in violation of his employer's written rules, is "misconduct connected with work," ORS 657.176(2)(a), when there is no evidence of on-the-job intoxication or impairment resulting from the drug use. EAB adopted the referee's opinion, which held that the answer is no. We agree and affirm.

In late 1985, employer adopted an employe handbook provision and a written "alcohol and drug policy" relating to drug use and testing. The handbook provision states:

"The Company may require employees to take a medical examination, including a blood and urine test, to detect drug usage. Any employee who refuses to cooperate with any such examination is subject to immediate discharge. Detection of the presence of controlled substances as defined by law (excluding any substance lawfully prescribed for the employee's use) is grounds for discharge."

The alcohol and drug policy repeats the handbook provision and also prohibits the use of intoxicants or controlled substances "while on Company property or during work hours * * * or reporting for work under the influence of alcohol or reporting to work after having ingested any controlled substance." Employer's principal motivation for promulgating the rules was safety in the workplace, and the alcohol and drug policy was included in its safety rules.

Claimant failed a urine test on March 31, 1986. Employer fired him shortly thereafter. The evidence shows that the test which claimant underwent detects marijuana traces in a person's system for approximately 30 days after its use. However, the test cannot provide more refined information, such as whether the person is under the influence of marijuana or when the person used marijuana during the 30-day period. The parties agree that marijuana can impair motor function for up to 12 hours after its ingestion. There was no evidence that claimant was ever intoxicated or impaired while he was at work due to marijuana use. He testified that he had used marijuana two to three weeks before the test. He was aware of, and had agreed to abide by, employer's handbook rule and drug policy and, although both his testimony and the rules themselves are somewhat ambiguous on the point, he apparently understood, and employer meant, the policy to impose an absolute ban on any marijuana use, on and off the job, rather than prohibiting only drug use which could affect an employe's performance or plant safety during working hours.

ORS 657.176(2)(a) authorizes the disqualification of a person for unemployment benefits to which he would otherwise be entitled if he is "discharged for misconduct connected with work." OAR 471-30-038(3) provides, as relevant:

"Under the provisions of ORS 657.176(2)(a) and (b), misconduct is a wilful violation of the standards of behavior which an employer has the right to expect of an employe. An act that amounts to a wilful disregard of an employer's interest * * * is misconduct."

The referee concluded that claimant's discharge was not for misconduct connected with his work, because:

"The urine sample was taken as part of employer's random sampling program. There was no allegation or evidence of actual impairment that would cause claimant to be inefficient or unsafe while at the workplace.

"Employer's testimony and evidence regarding lingering impairment was not sufficient to establish any ongoing impairment which would affect claimant's ability to safely perform his job.

" * * *

"Employer has not established * * * that claimant was in any way impaired, or that drug use, if any, was a disregard of employer's interests. Disqualifying work connected misconduct has not been established."

The essence of the referee's reasoning is that, for claimant's off-the-job drug use to constitute disqualifying misconduct under ORS 657.176(2)(a) and OAR 471-30-038(3), there had to be work deficiencies or drug effects while claimant was at work.

In its first assignment, employer challenges that reasoning and the "finding" that claimant "had not engaged in misconduct when he used marijuana in violation" of employer's rules. Employer does not appear to argue that, in the absence of its own rules, claimant's marijuana use would be disqualifying misconduct under the statute and the administrative rule. Employer focuses instead on claimant's deliberate violation of its rules prohibiting off the job illicit drug use. Those rules, according to employer, have a "reasonable relation to the conduct of the employer's business." Giese v. Employment Div., 27 Or.App. 929, 935, 557 P.2d 1354 (1976), rev. den. 277 Or. 491 (1977). Employer explains that the rules are reasonably calculated to promote work safety and that claimant's intentional violation of the rules was therefore disqualifying misconduct.

Employer relies on our decision in Giese, where we held that the claimant's termination after he was convicted of conspiring to damage certain buildings, which were not owned by the employer or connected with its business, was not for work-connected misconduct, "even though the employer [was] amply justified in dismissing" him. 27 Or.App. at 933, 557 P.2d 1354. We explained:

"[T]he misconduct was sufficiently serious. It was not, however, shown to be connected with claimant's work; rather it was conduct off the working premises and outside the course and scope of claimant's employment. We conclude that the phrase 'connected with his work' was added to our statute by the legislature to draw a distinction between misconduct while off-duty and misconduct in the course and scope of employment." 27 Or.App. at 934, 557 P.2d 1354.

We went on to say:

"We believe that where the conduct or activities for which the claimant is discharged occurred off the working premises and outside the course and scope of employment, the employer must, in order to show that the conduct is work-connected, point to some breach of a rule or regulation [of the employer] that has a reasonable relation to the conduct of the employer's business." 27 Or.App. at 935, 557 P.2d 1354.

Employer understands the last of the quoted statements to mean that the test which comes into operation if an employer's rule is violated is wholly separate from the statutory test of whether off-duty misconduct is connected with work. Although our language in Giese is susceptible to that understanding, among others, that understanding cannot be correct. An employer cannot reduce its statutory unemployment insurance responsibilities simply by promulgating an in-house rule. A rule may be relevant to the proof of facts bearing on whether off-duty misconduct is connected with work, but it cannot give rise to different substantive tests of work-connectedness than the ones expressed in the statute, the administrative rule and the cases construing them. ORS 657.176(2)(a) says nothing about the reasonable relation of a rule to an employer's business, much less suggest that such a relationship can serve as an alternative to the "misconduct connected with work" disqualification standard which the statute establishes. We did not amend the statute in Giese. We understand our discussion of employers' rules there as simply stating a complement to the statutory and regulatory tests: for purposes of disqualification under ORS 657.176(2)(a), an employer's rule pertaining to off-duty conduct can be reasonably related to the employer's business only under circumstances where the off-the-job conduct addressed by the rule could be considered work-connected in the absence of the rule. ¹

In this case, whether viewed from the perspective of the relation of the rules to employer's business or the connection of the misconduct to claimant's work, the question is whether off-the-job drug use can be disqualifying only if it does in fact or is reasonably likely in a specific case...