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 in the previous section-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 regarding drugs or alcohol, 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 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); see also BR-110354 (7/5/11)(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 of for deliberate misconduct).

If the claimant leaves work due to an alcohol-related incident, either on or off the job, he or she will not be disqualified under § 25(e)(1) so long as he or 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 who is 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 knowing rule violation standard. Shepard v. Director of the Div. of Employment Sec., 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 recently 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 a recent 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’s appeal of this decision is pending in Boston Municipal Court, Docket No. 2011-D-CV-673.

DUA maintains that a person who loses his or her job due to loss of license has voluntarily caused their own separation. Olmeda v. Director of the Div. of Employment Sec., 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 Dir. of DET, Greenfield District Court Decision, (Docket 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 (2/25/11), 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).

A claimant's need to seek alcohol-related treatment may constitute an urgent, necessitous and compelling 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. SRH § 1216(H). A person in an intensive and/or inpatient treatment program may not be "able and available" for UI purposes until they finish their 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 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), (I). However, while some hearing officers have recognized the same lack of intentionality and irresistible compulsion in cases where the separation is caused by addition to illegal drugs, the Board of Review continues to distinguish between addiction to legal, and 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.  However, it recently 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). Thus, this area is ripe for advocacy, particularly where the drug-related misconduct or rule violation is rather innocuous or where the addiction is to prescribed medications.

Note:  Advocates may be able to prevail if drug use was during non-work hours and off work premises, and prior to the start of employment. Thomas O’Connor & Co., Inc. v. Commissioner of the Div. of Employment & Training, 422 Mass. 1007, 664 N.E.2d 440 (rescript) (1996). Additionally, where a client denies drug use, advocates should challenge the accuracy and reliability of the drug test.