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. On the other hand, in a Key Decision, the Board held that a claimant discharged for failing a breathalyzer test, could not be disqualified where he had consumed alcohol 10 hours before his shift and was not intoxicated or under the influence at work. BR-0031 2558 84 (10/30/19) (Key).
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 (02/24/11) (Key); see also BR-110354 (7/5/11) (Key) (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 from receiving UI benefits after being fired for refusing to take a drug test, where the claimant asserted his own privacy interest, and where the employer’s reasons (that the claimant’s driving duties were about to increase and another driver had just failed a drug test) were not included in its drug test policy. BR-0019 4525 76 (3/20/17) (Key). The Board also 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 claimants leave work due to an alcohol-related incident, either on or off the job, they will not be disqualified under § 25(e)(1) so long as they admit to being an alcoholic and are making a sincere effort to overcome the alcoholism. AH c.7, § 4B.1, and AH c. 8, § 1F.14. 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. Dir. of the Div. of Emp't 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. AH c. 8, § 4.B.14.a. Alternatively, if claimants admit to being an alcoholic, they were temporarily incapable of adhering to the rule, due to alcohol-caused incompetence. This reasoning extends to a claimant who tested positive for alcohol in violation of a “last chance” agreement. The Board reasoned that where a claimant had been making a sincere effort to control her alcoholism, her inability to maintain her sobriety was not willful under the reasoning of the Shepherd decision. BR-0011 0254 86 (9/29/14) (Key). However, where a claimant refused to accept any help in controlling his alcoholism, the Board found that the violation of a last chance agreement through unexcused absences, binge drinking and involuntary commitment to a detox facility by a court order constituted disqualifying behavior. BR-122588 (3/29/13) (Key).
The Board of Review has concurred with the reasoning in Shepherd and reviewed its policies on alcoholism to take into account changes in cases and precedent, including the Americans with Disabilities Act. BR-109710 (3/18/10). 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.
The Board has held that a claimant, who due to his substance abuse problems, abruptly and involuntarily committed to a treatment facility and therefore, failed to appear for work is entitled to receive benefits because the claimant separated due to urgent, compelling, and necessitous reasons. BR-0027 2835 41 (1/14/19).
DUA maintains that individuals who lose their job due to loss of license have voluntarily caused their own separation. Olmeda v. Dir. of the Div. of Emp't 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 the Div. of Emp’t & 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).
Where a claimant’s work required a commercial driver’s license (CDL), and the claimant lost the license after he was arrested for driving under the influence, the Board held that in order to render the separation involuntary due to urgent, compelling, and necessitous reasons, that the claimant must show he knew he was alcoholic, tried, and was not successful in controlling the disease before the incident that caused him to lose his job. BR-0031 6220 54 (12/24/20). In this instance, the claimant demonstrated awareness of his drinking problem and made a concerted effort to address it before his arrest, rendering his separation involuntary. Compare id., with Constantineau v. Dir. Of Dep’t of Unemployment Assistance, 100 Mass.App.Ct. 1102 (7/19/21) (unpublished). In Constantineau, the Court of Appeals considered whether the claimant’s separation was for urgent, compelling, and necessitous reasons where he lost his CDL after his second arrest for driving under the influence. 100 Mass.App.Ct. 1102. Here the Court found the claimant’s failure to take steps to manage his alcoholism between his first arrest in February for driving under the influence and second arrest in June evidenced a failure to make reasonable efforts to preserve his employment, rendering his separation voluntary and disqualifying. Id.
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. Comm'r of the Dep’t of Emp't & Training, 65 Mass. App. Ct. 1106, 837 N.E.2d 729 (2005); Note: AH c. 7, § 4B.1 (individuals in an intensive and/or inpatient treatment program may not be “able and available” for UI purposes until they complete 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 or prescription drugs. The agency does provide, however, that 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. AH c. 7, § 3B.3.
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 marijuana 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 issued a decision holding that a positive marijuana test alone does not render a claimant ineligible for UI. BR- 0012 0048 01 (8/4/14); see also, BR-0018 3168 60 (7/29/16) (Key) (holding that a positive test alone is not disqualifying where a claimant was not under the influence while working, injured accidentally while preforming her job duties and not subject to federal Department of Transportation rules). For a full description of how DUA treats the adjudication of separations caused by possession of less than one ounce of marijuana, see AH c. 8, § 1F.14.b
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). 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 (5/9/12) (Key).
Advocates may 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. Comm'r of Emp't & 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. See BR-110354 (6/3/11) (Key) (finding that an employer did not meet its burden of proving that the claimant, who denied using marijuana, was working under the influence where it failed to provide evidence that the collection facility was certified or qualified to administer drug tests, that the urine sample was appropriately shipped from the collection facility to the lab, or that it was the claimant’s urine that had been tested).