Veneer v. Employment Div.

• Decision Date: 16 January 1991
• Docket Number: AB-1056
• Citation: 804 P.2d 1174,105 Or.App. 198
• Parties: Sun VENEER, Petitioner, v. EMPLOYMENT DIVISION and David R. Schafer, Respondents. 89-; CA A62039.
• Court: Oregon Court of Appeals

Page 1174

804 P.2d 1174

105 Or.App. 198

Sun VENEER, Petitioner, v. EMPLOYMENT DIVISION and David R. Schafer, Respondents.

89-AB-1056; CA A62039.

Court of Appeals of Oregon In Banc.

Argued and Submitted June 11, 1990.

Resubmitted In Banc Dec. 12, 1990.

Decided Jan. 16, 1991.

Francis T. Barnwell, Portland, argued the cause for petitioner. With him on the brief were Jonathan T. Harnish, Kathryn M. Hindman and Bullard, Korshoj, Smith & Jernstedt, P.C., Portland.

Meg Reeves, 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.

No appearance for respondent David R. Schafer.

RIGGS, Judge.

The Employment Appeals Board held that claimant's discharge was not for "misconduct connected with work," ORS 657.176(2)(a); OAR 471-030-038(3), and that he is therefore entitled to receive unemployment benefits. Employer seeks review, and we affirm.

EAB found that claimant worked for employer from 1979 to 1989 and was last employed as a chipper operator. In 1987, while working for employer, claimant submitted to a drug test and tested positive for methamphetamines. As a condition of continued employment, he agreed to participate in a rehabilitation program at employer's expense and to sign a "last chance" return-to-work agreement, which provided that he would face disciplinary action, including dismissal, if he again tested positive. Claimant completed the rehabilitation program and returned to work. In 1989, the day after "claimant took some methamphetamines right after work," he was randomly selected for testing while at work. He tested positive and was discharged.

At the hearing, employer offered no evidence that claimant's off-duty controlled substance use affected his work or the workplace. EAB applied Lyle E. Zufelt, Jr., Opinion and Order 87-S-1587-E (1987) (Zufelt ), where the Employment Division articulated its policies regarding eligibility for unemployment benefits of claimants who leave work or are discharged because of drug use or other drug-related activities. ¹ Zufelt says, as material:

"[B]efore benefits are denied for failing a drug test it should be shown that: (1) proper testing and confirmation procedures have been followed; and (2) there is clear objective evidence of impairment (e.g., bizarre behavior, substantial loss of productivity, etc.).

"DISCHARGE. If an employe is discharged for failing a drug test and there is clear objective evidence that the employe was drug impaired, it is a discharge for misconduct."

EAB concluded that, because there was no evidence that on- impairment resulted from claimant's off-duty drug use, the discharge was not for "misconduct connected with work," within the meaning of ORS 657.176(2)(a), and claimant was therefore not disqualified from receiving unemployment compensation.

Employer first argues that EAB erred by concluding that actual on-the-job impairment must be established in order for a claimant's off-duty drug use to constitute work-connected misconduct. Employer relies on our statement in Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or.App. 669, 674, 741 P.2d 907 (1987), that "off-the-job drug use can be disqualifying only if it does in fact or is reasonably likely in a specific case to have actual on-the-job effects." (Emphasis supplied.) ² Employer contends that its evidence demonstrated a reasonable likelihood of on-the-job effects.

The difficulty with employer's argument is that the only evidence to which it points is "claimant's admitted amphetamine use before his work-shift, and subsequent positive drug test." That evidence is no more probative of "reasonably likely" effects than of actual impairment. Neither claimant's drug use the previous day nor the positive drug test reveal anything about actual or likely impairment or other drug effects at the time of the test or at any time that claimant was at work. We explained in Glide Lumber Prod. Co. v. Emp. Div. (Smith), supra, that the test used there could detect marijuana for approximately 30 days after its use, but could not reveal when the drug was ingested or what amount of it remained in the employee's system. However, the record in Glide showed that the impairing effect of marijuana lasts for only 12 hours after ingestion. We therefore noted that that test could "come no closer than a 29-day range of identifying when the marijuana was pharmacologically active in any way which could bear on performance or safety." 86 Or.App. at 674, 741 P.2d 907. It may be that some testing methods are capable of demonstrating more of a correlation; but that is a question of fact, and employer did not offer evidence that there was such a correlation here.

Employer also relies on PGE v. Employment Division, 95 Or.App. 647, 770 P.2d 940 (1989), where we held that the claimant's off-duty ingestion of alcohol was reasonably likely to have on-the-job effects, in the light of a urine test, administered three hours after the claimant reported for work, that revealed a blood alcohol content of .138. Employer analogizes the two cases, because the claimants in both tested positive "three hours into [their] work shift[s]." The point, however, is not when the tests were administered, but what they could show. We noted in PGE:

"Unlike the drug test used in Glide, however, the legislature has decided that chemical analysis of a person's blood or urine provides a reasonably accurate measure of the level of intoxication present at or near the time of the test." 95 Or.App. at 651 n. 1, 770 P.2d 940.

Here, employer presented no such evidence about the capability of the test that it used to show actual drug influence or residual impairment at the time the test was administered.

Employer also relies on Silverton Forest Prod. Co. v. Emp. Div. (Arrant), 86 Or.App. 684, 741 P.2d 915 (1987), to argue that the "impairing effects from amphetamines can last up to three days after they are taken" and, therefore, that claimant's use of the substances the day before he was tested established a reasonable likelihood of on-the-job impairment. Employer does not read Silverton correctly. We said that the drugs were detectable by testing for three days after they were taken, not that their impairing effects could last that long. Contrary to employer's argument, we said that

"impairment from cocaine use can last up to eight hours, and amphetamines may produce impairing effects which last for a somewhat longer period." 86 Or.App. at 686, 741 P.2d 915.

In any event, our comments in Silverton were based on the evidence in the record there. Employer offered no evidence in this case to prove the duration of possible impairment from the drugs that claimant used. There was also no evidence that claimant's drug use occurred within the approximate eight-hour period before he reported for work on the day that he was tested; claimant worked the day shift, and EAB found that he ingested the drugs "right after" his shift ended at 4:30 p.m. on the previous day. Silverton does not assist employer.

Employer next argues that the safety needs of claimant's job were such that his misconduct was connected with his work, even in the absence of a showing of impairment. Employer relies on a 1986 memorandum from the assistant director to Division managers, that states, in part:

"In cases involving significant threats to public safety, it may be permissible to deny benefits for misconduct where the individual fails a drug test even though there is no evidence of impairment."

Again, however, employer produced no evidence about the safety needs of claimant's job. As the Division states in its brief, the record "is completely silent as to the nature of employer's business, or even the nature of claimant's job, beyond the [unembellished] fact that he was a 'chipper operator.' "

For the same reasons, the dissent's emphasis on safety concerns is misplaced. We might agree that employees in certain kinds of work, such as airline pilots or nuclear submarine commanders, cannot perform safely to a satisfactory probability if any intoxicating substances are in their systems. We would also agree, and Glide and our other cases have recognized, that the characteristics of some jobs, other than their safety requirements, might make off-duty drug use intrinsically connected with their performance. See note 4, infra. However, whether safety or other requirements make that true of particular jobs is a question of fact, and employer produced no evidence to demonstrate that it is true of claimant's job.

Employer's most strongly urged argument is that the last chance agreement, in which claimant agreed not to use drugs on or off the job, provides an independent basis for concluding that his misconduct was connected with his work, even if it would not have been in the absence of the agreement. We said in Glide Lumber Prod. Co. v. Emp. Div. (Smith), supra :

"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." 86 Or.App. at 674, 741 P.2d 907. ³ Employer argues that, unlike the employer's rule in Glide, this case involves a mutual agreement rather than a unilaterally imposed job requirement. There may be little difference in that distinction. The prohibition of off-duty drug use was a condition of employment, and employer was free to impose it whether or not claimant agreed to it.

Be that as it may, an employer and an employee acting in concert have no more authority than does an employer acting alone to change the unemployment compensation law or to alter the statutory eligibility and disqualification criteria. M...