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RHOADS & SINON LLP ATTORNEYS AT LAW
ONE SOUTH MARKET SQUARE
P.O. BOX 1146
HARRISBURG , PA 17108-1146
www.rhoads-sinon.com

David F. O’Leary’s Direct Dial: 717-231-6633
FAX: 717-231-6637

Email: doleary@rhoads-sinon.com

Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #2. Unemployment Compensation Blues: Off Duty Pot Smoking At Home is Not Willful Misconduct! (August 2002)

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested and I hope you find interesting, too. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments.

Unemployment Compensation Blues: Off Duty Pot Smoking At Home is Not Willful Misconduct!

One of the most frustrating experiences for an employer is to fire an employee whom the employer believes should be fired only to have the employee apply for and collect unemployment compensation benefits. This is particularly true when an employer believes that an employee has engaged in serious misconduct and the employee is still successful in obtaining unemployment compensation benefits.

An egregious example of employee misconduct that did not disqualify the employee from receiving unemployment compensation occurred in an unemployment compensation case decided in July by the Pennsylvania Supreme Court. (Burger v. Unemployment Compensation Board of Review, 801A. 2d 487)

In this case, an employee who worked as a Certified Nurses Aide (“CNA”) at a nursing home admitted to her employer that she smoked marijuana nightly while she was off duty at home, but that she never reported to work directly after smoking marijuana. The employer fired the employee. The employee applied for unemployment compensation benefits. Under the unemployment compensation law, an employer who fires an employee and claims the employee is not entitled to unemployment compensation benefits must prove that the employee engaged in “willful misconduct connected with his work.” The Unemployment Compensation Referee, the Unemployment Compensation Board of Review and the Commonwealth Court all found that the employee was ineligible for benefits on the grounds that her off duty drug use constituted “willful misconduct connected with her work.” However, the Pennsylvania Supreme Court reversed, finding that her off duty pot smoking did not constitute “willful misconduct connected with her work.” The Pennsylvania Supreme Court’s finding was based on three (3) facts:

(1) The employer’s drug and alcohol policy apparently prohibited employees from reporting to work or working “under the influence of alcohol or illegal drugs” but did not flatly prohibit employees from using illegal drugs on or off the premises or on or off duty;

(2) The employer failed to produce any evidence that the employee reported to work under the influence of marijuana; and

(3) The employer failed to produce any evidence that the employee’s use of marijuana affected her job performance as a CNA.

If any of the above facts had been different, the Pennsylvania Supreme Court would have concluded that the employee was not entitled to unemployment compensation benefits, but since the facts were exactly as they were described above, the Pennsylvania Supreme Court concluded that it had no choice but to find that her illegal drug use was not “willful misconduct connected with her work.”

Frustrated business people often feel like Mr. Bumble in Charles Dickens’ Oliver Twist who, upon learning that the law assumed that he was the sovereign of his wife, said “the law is an ass.” In this case, the employer could have reasonably believed that it had no choice but to terminate the employee. Imagine if the employer had decided to retain the employee and the employee, while under the influence of pot, negligently or recklessly injured a resident of the nursing home. In the subsequent personal injury lawsuit brought against the nursing home, what would the jury think of a nursing home employer that retained an employee who admitted to the employer that he or she smoked marijuana nightly? The punitive damages award could be staggering. And yet the same legal system that would punish the employer for retaining the employee, punishes the employer anyway with higher unemployment taxes (the inevitable consequence of former employees collecting unemployment compensation benefits) for terminating the employee.

Conclusion and Recommendation

The nursing home employer could have prevailed if the employer’s drug and alcohol policy had been worded differently. Drug and alcohol policies should put employees on notice that the use of unlawful drugs is prohibited regardless of where or when the use occurs and that employees who report to work with any detectable of amount of unlawful drugs in their bodily systems (as opposed to reporting to work “under the influence”) are considered unfit for work. The policy should also explain briefly why off duty/off premises illegal drug use can jeopardize employee safety and morale, as well as the employer’s business and reputation. If all of the above had been included in the employer’s drug and alcohol policy, the employer could have argued that it had a reasonable drug policy of which the employee had notice and which the employee flagrantly violated. In my book, that’s “willful misconduct connected with work.”