In the matter of Dillon v. Unemployment Compensation Board of Review, 2013 WL 2991042, the Commonwealth Court of Pennsylvania interpreted Pennsylvania Unemployment Compensation Law to include alcohol consumption within the meaning of 43 P.S. Section 802(e.1).
The Claimant in Dillon worked for the employer as a pipe fitter for about one (1) year. During that time, the Claimant tested positive in a random blood alcohol test and was provided a last-chance agreement in lieu of termination. Not long after the aforesaid test Claimant was subjected to another random blood test, tested positive again, and was terminated from his employment as a result of the positive test. Upon his termination, Claimant attempted to secure unemployment compensation benefits and was deemed ineligible due to having committed willful misconduct. Ultimately, the Court ruled that the Claimant is ineligible for unemployment compensation benefits. Strangely, however, instead of merely affirming the Board of Review and Referee’s findings that Claimant is ineligible, the Court embarked on what seems to be an unnecessary decision regarding which provision of the Unemployment Compensation law rendered the Claimant ineligible.
Under 43 P.S. Section 802(e), an unemployment compensation claimant is ineligible for benefits if he is terminated due to willful misconduct. The Court pointed out that as long as the employer in the instant matter can prove that the Claimant was aware of, and violated, a work rule (which the Court found the employer did prove), the Claimant could be determined ineligible for benefits. This seems to affirm the Unemployment Compensation Board of Review and Referee, yet the Court proceeded to rule that, although ineligibility could have been determined through the route just described, the Claimant was actually ineligible under 43 P.S. Section 802(e.1), which specifically addresses drug use.
The Court appeared to say that now that 43 P.S. Section 802(e.1) is available to use, it would not employ 43 P.S. Section 802(e) in drug and alcohol cases, even though the matter could reach same result. According to the Court, perhaps the most important application of 43 P.S. Section 802(e.1) over 43 P.S. Section 802(e) is that 43 P.S. Section 802(e.1) allows for ineligibility due to violation of a substance abuse policy absent any showing of willful misconduct.
43 P.S. Section 802(e.1) provides that a claimant can be determined ineligible for benefits if discharged for failing to pass a “drug test.” The issue clarified by the Dillon Court was whether alcohol, which is the substance abused by the Claimant, is a “drug” as contemplated by the aforesaid statute. The opinion of the Board of Review was that the language of the statute is clear: the word “drug” is used and not “alcohol,” therefore the Claimant cannot be deemed ineligible under 43 P.S. Section 802(e.1). In the Board’s view, if the legislature wanted to use the word “alcohol” it would have done so; as the legislature elected not to use it, it is not appropriate to read it into the law.
The Court, after an analysis which included looking at the definition of “drug” in both Black’s Law Dictionary and Webster’s Third New International Dictionary, concluded that alcohol can properly be considered a “drug” as the term is typically used and, indeed, read into the law. The Court further concluded, as a result, that the legislature intended to include “alcohol” as part of the definition of the word “drug” in 43 P.S. Section 802(e.1). Finally, the Court did not believe any analysis which would exclude alcohol from the definition of the word “drug” due to drugs being illegal and alcohol legal is persuasive. The Court pointed out that just as over-the-counter drugs are legal, but able to be abused, alcohol is also legal and able to be abused. In the Court’s estimation, it is the abuse of a substance that is relevant, not its legality.
In sum, then, while a claimant can be deemed ineligible for unemployment compensation benefits for violation of a drug and/or alcohol test on the basis of willful misconduct (pursuant to 43 P.S. Section 802(e)), the Court ruled that now that the statute is available, the ineligibility must now be pursuant to 43 P.S. Section 802(e.1) which speaks directly to issue of drugs.
Originally published in Upon Further Review on August 19, 2013 and can be seen here.