34. Did the Claimant Leave Work Due to Alcoholism or Substance Abuse?
Employee substance abuse, or conduct that derives from substance abuse, is often a factor in determining employee eligibility for UI benefits. It may arise in both quit and discharge cases discussed above—a UI claimant with a drinking problem may be disqualified for having voluntarily quit a job without good cause, or for engaging in alcohol-related misconduct or rule violations. Generally, if the employer can demonstrate that the claimant violated a company policy regulating the effect drugs or alcohol has on job performance at work, the claimant will be disqualified. Drug or alcohol testing to determine compliance with the employer’s policy must meet relevant standards; the Board of Review, for example, has held that UI benefits could not be denied to a claimant where the only evidence of his drug use in violation of the employer’s policy was a positive drug test that did not follow the standards for drug testing set forth by the federal government, which required a “split urine specimen.” BR-109252-A (02/24/2011), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/discharge/dc-100-00-generally/dc-100-1-reliable-evidence/dc-100-11-drug-test/br-109252-a.pdf; see also BR-110354 (7/5/11), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/discharge/dc-100-00-generally/dc-100-1-reliable-evidence/dc-100-11-drug-test/br-110354.pdf (where employer used a procedurally flawed drug test for marijuana and, even if the test were reliable, the level of marijuana present in the sample would not cause impairment at work, the claimant cannot not be disqualified for violation of the employer’s drug policy or for deliberate misconduct).
The Board held that a claimant was not disqualified for quitting when he reasonably believed he would be fired for refusing to take a random drug test. BR-114832-A (date missing from signature page) at p. 5. This case also suggests that employees who are unaware of an employer policy subjecting an employee to random drug tests and who are fired for failing such test may not be disqualified under § 25(e)(2) for a “knowing violation of a reasonable and uniformly enforced rule or policy of the employer” (emphasis added). Id.
If the claimant leaves work due to an alcohol-related incident, either on or off the job, she will not be disqualified under § 25(e)(1) so long as she admits to being an alcoholic and is making a sincere effort to overcome the alcoholism. SRH §§ 1216(G), 1336(C). DUA’s SRH policy statements and state court cases have long recognized that a person addicted to alcohol is subject to an irresistible compulsion to drink. This negates the intentionality required for the claimant to be disqualified under either the deliberate misconduct or the knowing-rule-violation standard. Shepherd v. Director of the Div. of Employment Security, 399 Mass. 737, 506 N.E.2d 874 (1987). Any conduct that is the product of an irresistible compulsion to drink (alcoholism) cannot be considered to be deliberate or willful and should not incur a disqualification for misconduct. SRH §§ 1325, 1336. Alternatively, if the claimant is an admitted alcoholic, he or she was temporarily incapable of adhering to the rule, due to alcohol-caused incompetence.
The Board of Review has concurred with the reasoning in Shepard and reviewed its policies on alcoholism to take into account changes in cases and precedent, including the Americans with Disabilities Act. BR-109710 (3/18/2010). In another decision, the Board ruled that although it does not read Shepherd to hold that alcoholism is an absolute defense to disqualification under § 25(e)(2), a claimant may prevail if she demonstrates that, at the time of the misconduct, she “suffered from the disease of alcoholism, was unable to control the addiction, and that these two factors caused the wrongful behavior and discharge.” BR-110099 (2/25/11), at p. 6. Notably, the Board found the claimant eligible even though, as a result of the claimant’s alcoholism, the claimant lost her driver’s license, which she needed for her job.
DUA maintains that a person who loses a job due to loss of license has voluntarily caused his or her own separation. Olmeda v. Director of the Div. of Employment Security, 394 Mass. 1002, 475 N.E.2d 1216 (1985) (claimant whose separation was caused by loss of license deemed to have voluntarily quit his job). However, Olmeda did not raise the question of alcoholism. If the loss of license resulted from admitted alcoholism, a claimant should still qualify for UI. See Carey v. King, Deputy Director of the Div. of Employment & Training, Greenfield District Court, CA No. 0041-CV-0251, (6/4/01) (claimant, who was an admitted alcoholic, qualified for UI notwithstanding his loss of license for failure to take a breathalyzer test, because any conduct arising out of his irresistible compulsion to drink was not “voluntary”). See also BR-110099 above, where the Board of Review specifically determined that if a loss of license leading to separation from employment resulted from admitted alcoholism, a claimant should still qualify for UI. The claimant’s refusal to take a blood-alcohol test after a car accident caused her to lose her license for 30 days, during which time she could not return to work. Determining that there was sufficient evidence showing the claimant suffered from alcoholism, the Board found that the claimant’s judgment was impaired when she refused to take the blood test, and thus her refusal to do so did not constitute “willful misconduct” under § 25(e)(2).
The Board has reiterated its position that employee misconduct is not deliberate as a matter of law where the employee is an alcoholic and the employee’s inability to control her drinking causes the misconduct. BR-117836 (10/31/2011), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/discharge/dc-400-00-mitigating-circumstances/dc-400-1-alcoholism/117836-redacted.pdf (claimant who shows that he or she “suffered from the disease of alcoholism, was unable to control the addiction, and that both of those facts together caused the wrongful behavior and the discharge” gives rise to a presumption that misconduct resulting from alcohol consumption was neither deliberate nor willful, placing burden on employer to rebut same). See also Orellana v. Director of the Div. of Unemployment Assistance, Gloucester District Court, CA No. 1139 CV 0101 (2010) (holding that an employee who was told to ‘find work elsewhere’ after showing up to work smelling of alcohol was effectively discharged, and that a decision to deny him UI on the grounds that he had quit was precluded by the manner of his discharge).
A claimant’s need to seek alcohol-related treatment may constitute an urgent, compelling, and necessitous personal reason for leaving work, rendering the separation involuntary. However, the employee should request a leave of absence first, unless such a request is futile. See City of Woburn v. Commissioner of the Dep’t of Employment & Training, 65 Mass. App. Ct. 1106, 837 N.E.2d 729 (2005); SRH § 1216(H) (a person in an intensive and/or inpatient treatment program may not be “able and available” for UI purposes until he finishes his treatment program).
DUA policies and administrative decisions suggest that the agency is ambivalent about whether to apply this same “illness model” to workers’ addiction to illegal or prescription drugs. An employee who seeks drug or alcohol treatment and who cannot obtain a leave of absence from the employer is considered to have left involuntarily, for urgent, compelling, and necessitous reasons. SRH § 1216(H). However, while some hearing officers have recognized the same lack of intentionality and irresistible compulsion in cases where addiction to illegal drugs causes the separation, the Board of Review continues to distinguish addiction to legal substances from addiction to illegal substances. The Board has as yet articulated no clear analytical basis for distinguishing the state of mind issue based upon the legality of the substance.
The marijuana decriminalization law (G.L. c. 94C, § 32L), passed as a voter initiative in 2008, specifically provides that “possession of one ounce or less of marihuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits.” In August 2014, the Board of Review issued a decision holding that a positive marijuana test alone does not render a claimant ineligible for UI. BR- 0012004801. For a full description of how DUA treats the adjudication of separations caused by possession of less than one ounce of marijuana, see DUA UI Policy & Performance Interoffice Memorandum # 2015.8 (9/18/15) available at masslegalservices.org.
The Board has also held that an employer’s policy of discharging employees for “any amount” of drug use does not constitute grounds for disqualification where the claimant’s off-duty use does not carry over to impairment at work. BR-113575 (12/23/10). See also BR-122488 (12/18/2012) (testing for marijuana in system without more evidence does not prove that claimant was under the influence at work, for purposes of uniformly enforced drug policy). In addition, the Board held that absent a regulatory requirement prohibiting employees from working who test positive, a claimant is not disqualified for a positive drug test standing alone. BR-118149 (5/9/2012), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/discharge/dc-200-00-deliberate-misconduct/dc-200-2-drug-use/118149-redacted.pdf.
Note: Advocates may also be able to prevail if drug use was during non-work hours and not on work premises, or was prior to the start of employment. Thomas O’Connor & Co., Inc. v. Commissioner of Employment & Training, 422 Mass. 1007, 664 N.E.2d 441 (1996) (rescript). Additionally, where a client denies drug use, advocates should challenge the accuracy and reliability of the drug test.