Published in the July, 2020 issue of the PELRAS newsletter
Published on: Tue 7th Jul, 2020 By: Campbell Durrant, P.C.
On May 11, 2020, the Pennsylvania Commonwealth Court upheld the state Unemployment Compensation Board of Review’s (“Board”) order granting benefits to a Cannabidiol (“CBD”) user after her employment was terminated for testing positive for marijuana. Washington Health Sys. v. Unemployment Compensation Bd. of Rev., 2020 WL 2312347 (Pa. Commw. Ct. May 11, 2020). The majority opinion concluded that the employee was eligible for benefits because the employer did not submit the drug test result as evidence and thus failed to demonstrate that the employee violated its Drug and Alcohol Free Workplace Policy.
The employee submitted to a random drug test pursuant to the Employer’s Drug and Alcohol Free Workplace Policy. Before the test was administered, the employee disclosed that she was taking over-the-counter CBD for cancer related symptoms. The drug test result came back positive for marijuana, and the employer terminated the employee on that basis. The employer did not, however, submit the test result as evidence at the unemployment compensation hearing. The employee denied using marijuana, but admitted that she used CBD and asserted that the use of CBD is “legal” and that it is not a psychoactive substance. The employee also testified that a doctor told her that CBD could cause a “false positive” test result for marijuana.
The employer’s policy called for discipline up to discharge for “being under the influence of drugs or having drugs in one’s system while at work.” The policy defined “drug” as “any substance producing effects on the central nervous system or any controlled substance,” and “under the influence” as “any amount that is capable of rendering a positive result in any drug test.” Legal use of drugs were not prohibited, but employees were required to disclose to the employer “in advance of working” when taking any drug “that poses a significant risk of substantial harm to the health or safety of the individual or others, or when taking any drug that renders the employee unable to perform the essential functions of the job.”
Under Pennsylvania Unemployment Compensation Law, in a case involving discharge due to a drug policy violation, the employer must demonstrate: (1) that it had a substance abuse policy, and (2) that the employee violated the policy. Bowers v. Unemployment Comp. Bd. of Review, 165 A.3d 49, 52 (Pa. Cmwlth. 2017). If an employer meets its initial burden, a claimant will be ineligible for benefits unless he or she can demonstrate that the employer’s substance abuse policy is in violation of the law or a collective bargaining agreement. Id. The unemployment compensation statute does not permit a claimant to show good cause or justification for a drug policy violation.
The majority of the Court agreed with the Board that the employee was eligible for benefits because the employer failed to demonstrate that its policy was violated. The active ingredient in marijuana, tetrahydrocannabinol (“THC”), is a controlled substance but CBD is not in doses of 0.3% THC or less. The employer’s failure to submit the test result into evidence was fatal to its case, the Board explained, because there was no record of the percentage of THC detected in the employee’s system. In other words, there was no way to show that the employee had “drugs” in her system, defined by the Policy as either a substance effecting the central nervous system or a controlled substance. The majority opinion reasoned that the absence of the test results precluded a finding that the employee used a controlled substance or was unable to perform the essential functions of her job. Notably, this is not a case where the employee was alleged to have been observed being under the influence at work or in possession of “drugs” in the workplace.
What does this decision mean for employers? The primary take away is that employers must submit authenticated drug test results in unemployment compensation hearings where the decision to terminate was based on a failed drug test result. It is unknown what the outcome in this case would have been if the employer had submitted the drug test result into evidence, along with expert testimony interpreting the test result. It also is unknown what the outcome would have been in this case if the employee had been certified to use medical marijuana pursuant to the Pennsylvania Medical Marijuana Act. Stay tuned to future PELRAS Update articles, as we expect to see additional unemployment benefits and workers’ compensation cases involving marijuana and CBD.