S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: *******

Board Case No.: 1002-BR-14

Referee Case No.: 1137-EE-14

Date mailed to interested

parties: September 17, 2014

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits effective March 2, 2014, and notified the employer of its chargeability on April 2, 2014. On April 23, 2014, the employer appealed the administrator's decision to the Waterbury office of the appeals division. The appeals division scheduled a hearing of the appeal for May 8, 2014, in which the claimant and employer participated. By a decision issued on June 27, 2014, Associate Appeals Referee Stephen F. Wierbicki reversed the administrator's ruling.

The claimant filed a timely appeal to the board of review on July 10, 2014. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUES

The referee ruled that the employer discharged the claimant for wilful misconduct in the course of the employment, and thus the claimant was disqualified from receiving unemployment compensation benefits. In support of his appeal from the referee's decision, the claimant contends that he was forthcoming with the employer in May 2013 about his undergoing outpatient treatment for his drug addiction; that he suffered a relapse when he went on vacation in February 2014; and that he subsequently continued treatment for his addiction. He also maintains that he needs financial assistance.

The issues before the board are whether the employer discharged the claimant for wilful misconduct in the course of the employment; whether the employer discharged the claimant because he was disqualified under state or federal law from performing the work for which he was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with law; and whether the employer is relieved of charges pursuant to General Statutes § 31-225a(c)(1)(E)(ii).

III. PROVISIONS OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of employment. Section 31-236(a)(16) of the General Statutes, as amended, defines wilful misconduct, for purposes of the Connecticut Unemployment Compensation Act, as:

deliberate misconduct in wilful disregard of the employer's interests, or a single, knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not the result of the employee's incompetence.

Section 31-236(a)(14) of the General Statutes provides that a claimant is disqualified from receiving unemployment compensation benefits if it is found that he or she has been discharged or suspended because he or she has been disqualified under state or federal law from performing the work for which he or she was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with such law.

Section 31-225a(c)(1)(E)(ii) of the General Statutes provides that an employer is relieved of charges for unemployment compensation benefits paid to a claimant if that individual is discharged for violating an employer's drug testing policy, provided that the policy has been adopted and applied consistent with state and federal law.

Section 31-51x1(b)(3) of the General Statutes provides, in relevant part, that:

An employer may require an employee to submit to a urinalysis drug test on a random basis if the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

Preliminary, the board is sympathetic to the claimant's financial needs. However, the Connecticut Unemployment Compensation Act does not allow the board to consider a claimant's economic circumstances in determining whether a claimant is eligible for unemployment compensation benefits.

Nonetheless, the board is not bound by the referee's legal or factual conclusions. See Warrington v. Administrator and Andy's Footman, Inc., Board Case No. 1224-BR-88 (Decision on Claimant's Motion to Correct Findings, 8/11/89). The board conducts a de novo review of the record and can make an independent determination of facts and the law. See Middlesex Memorial Hospital v. Administrator, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 312592 (June 27, 1989).

We must first consider whether the employer discharged the claimant under a statutorily mandated drug and alcohol testing program such that he could no longer lawfully perform his job. See General Statutes § 31-236(a)(14). The employer's alcohol and drug-free workplace policy authorizes drug testing under the United States Department of Transportation's ("DOT") Federal Motor Safety Carrier Administration's ("FMSCA") drug and alcohol testing regulations and the Federal Aviation Administration's ("FAA") drug and alcohol testing regulations.⁽¹⁾ FMSCA drug testing regulations apply to individuals who operate a commercial motor vehicle in any state and who are subject to commercial driver's license requirements. See 49 C.F.R. 382.601(b)(8). FMSCA drug testing regulations define a "commercial motor vehicle" as a motor vehicle used in commerce to transport passengers or property if the vehicle has a gross combination weight or weight rating of 26,001 pounds or more; has a gross vehicle weight or weight rating of 26,001 pounds or more; is designed to transport 16 or more passengers, including the driver; or is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Materials Regulations. See 49 C.F.R. 382.107.

In the instant case, the employer's operational manager, James Bruno, testified that the claimant's job entailed driving a large box truck containing various property items in Connecticut and New York. Bruno also testified that the claimant was not required to hold a commercial driver's license to drive the box truck for the employer. Bruno further testified that the claimant never needed to expose placards on his truck even though he occasionally carried hazardous materials, such as dry ice and human tissue samples, in his vehicle. Moreover, both Bruno and the claimant testified that the claimant's box truck weighed 10,000 pounds or less. Furthermore, Bruno wrote in the claimant's February 26, 2014 discharge letter that the claimant's February 12, 2014 drug test was a "Non-DOT follow up drug screen." Therefore, the employer failed to establish that the claimant's February 12, 2014 drug test was conducted pursuant to FMSCA drug testing requirements because the weight of the claimant's vehicle was under 26,001 pounds, he did not transport 16 or more passengers in his vehicle and his vehicle was not required to be placarded. The employer also failed to produce any evidence that the claimant was subject to mandatory drug testing under Connecticut law in his position for the employer. We thus conclude that the employer did not discharge the claimant because he was disqualified under state or federal law from performing the work for which he was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with law.

We must also consider whether the claimant's testing positive for drugs in violation of his last chance agreement constitutes wilful misconduct. The record reveals that the claimant notified the employer that he had an addiction to Percocet in May 2013, because his outpatient program conflicted with the employer's proposed schedule change. As a result of his voluntary disclosure, the claimant was required under the employer's alcohol and drug-free workplace policy to sign a "statement of understanding" in order to retain his job. The statement of understanding provided that the claimant agreed to participate in the employer's employee assistance program ("EAP") and to undergo random, follow-up testing for five years. The agreement further provided that the claimant's employment would be terminated if he had a positive drug or alcohol test in accordance with its alcohol and drug-free workplace policy. The claimant took a follow-up, urinalysis drug test on February 12, 2014, and tested positive for cocaine, and the employer discharged the claimant for violating its policy.

The board has ruled that an employee's failing to adhere to a last chance agreement regarding drug or alcohol use constitutes disqualifying misconduct where the failure to adhere to the agreement did not result from an addiction.⁽²⁾ See Bell v. City of Stamford, Board Case No. 75-BR-98 (2/10/98). We have excused an employee's violating her last chance agreement to participate in an alcohol rehabilitation program which was caused by the claimant's relapse. See Gomez v Department of Public Safety, Board Case No. 343-BR-97 (7/30/98); see also McNulty v. Groton Regency, Board Case No. 369-BR-92 (3/27/92). We have also found good cause for a claimant's violating an agreement to participate in a substance abuse program where the claimant suffered a relapse of his addiction and demonstrated that the violation of the agreement was a product of the illness. Alexander v. City of Stamford, Board Case No. 42-BR-88 (3/15/88).

The claimant admitted at the administrator's predetermination hearing that he has an addiction to opiates and over-the-counter medication and that he has participated in outpatient treatment since February 2013. He also admitted at the referee's hearing that he is addicted to Percocet. The claimant further submitted a March 20, 2014 statement from Dr. Peter Rostenberg certifying that the claimant was participating in substance abuse treatment. Therefore, the claimant has provided sufficient evidence that he was addicted to drugs and that he suffered a relapse of his illness in February 2014. There is a clear nexus between the claimant's addiction and his violating the employer's alcohol and drug-free workplace policy and his last chance agreement. We thus conclude that the claimant's addiction is a compelling circumstance that excused his violation of the last chance agreement and that the employer discharged the claimant for reasons other than wilful misconduct in the course of the employment.

Finally, we must consider whether the employer should be relieved of charges under General Statutes § 31-225a(c)(1)(E)(ii), which requires that the claimant be discharged pursuant to a policy that is applied in accordance with law. General Statutes § 31-51x specifically authorizes an employer to conduct a random urinalysis drug test as part of an employee assistance program ("EAP") in which the employee voluntarily participates. In the case before us, the claimant voluntarily signed a statement of understanding agreeing to participate in the employer's EAP program and to follow-up drug testing to retain his employment in July 2013. Therefore, we find that the employer conducted the claimant's February 12, 2014 drug test in accordance with applicable state law and that the employer is relieved of liability under General Statutes § 31-225a(c)(1)(E)(ii).

In so ruling, we adopt the referee's findings of fact, except that we replace the second sentence in the referee's finding of fact no. 2 with the following finding: "The claimant's vehicle was not required to be placarded." We replace the phrase "recited 'after" with "recited, I understand that aftercare is mandatory. . . . After" in the second sentence of the referee's finding of fact no. 6. We delete the last sentence in the referee's finding of fact no. 7. We add the following sentence at the end of the referee's finding of fact no. 8: "The claimant's February 12, 2014 drug test was not required by the United States Department of Transportation."

We replace the referee's findings of fact nos. 3 and 9 with the following finding of facts:

3. The claimant drove interstate between Connecticut and New York transporting packages for the employer. The packages mainly contained documents but also included medical tools, human tissue samples, protein drinks and dry ice.

9. The claimant is addicted to drugs, including Percocet, opiates and over-the-counter medication. The claimant has been in outpatient substance abuse treatment with Dr. Peter Rostenberg since February 2013.

V. DISPOSITION AND ORDER

The referee's decision is reversed and the appeal is sustained. The claimant is not disqualified from receiving unemployment compensation benefits effective March 2, 2014. The employer is relieved of liability for the claimant's benefits.

BOARD OF REVIEW

_______________________________

Amy Stillman Kulig, Acting Chair

ES Board of Review

In this decision, Board Member Bruce Zeke Zalaski concurs.

ASK:ENF:mb

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY OCTOBER 17, 2014. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.

COPIES OF THIS DECISION PROVIDED TO:

BENEFIT PAYMENT CONTROL UNIT

Department of Labor

200 Folly Brook Boulevard

Wethersfield, CT 06109

1. Because the claimant's job did not entail any aviation-related duties, FAA drug testing regulations do not apply to this case.

2. Since the claimant's addiction is a compelling circumstance that excuses his violation of the last chance agreement, we need not consider whether the last chance agreement itself is reasonable under Gomez v. Dept. of Public Safety - State of Connecticut, Board Case No. 343-BR-97 (7/30/1998). In Gomez, we stated that we would find a reasonable return-to-work agreement regarding counseling or "possibly" an agreement that a claimant test negative for drugs before returning to work, where the worker has been identified with substance dependency.