The Pittsburgh Water and Sewer Authority v. UCBR

T
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Pittsburgh Water and Sewer                  :
Authority,                                      :
                  Petitioner                    :
                                                :
               v.                               :
                                                :
Unemployment Compensation                       :
Board of Review,                                :    No. 228 C.D. 2020
                 Respondent                     :    Argued: October 14, 2020


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION BY
JUDGE COVEY                                                   FILED: November 18, 2020

               The Pittsburgh Water and Sewer Authority (Employer) petitions this
Court for review of the Unemployment Compensation (UC) Board of Review’s
(UCBR) January 31, 2020 order reversing the Referee’s decision and granting Terrence
G. Suber (Claimant) UC benefits. The sole issue before this Court is whether the
UCBR erred by determining that Claimant is not disqualified for UC benefits under
Section 402(e.1) of the UC Law (Law).1
               Employer employed Claimant as a customer service representative from
March 4, 2019, until July 3, 2019. Employer maintains a Drug and Alcohol Free

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by Section
3 of the Act of December 9, 2002, P.L. 1330, 43 P.S. § 802(e.1) (relating to discharge for “failure to
submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse
policy[]”).
Workplace Policy (Drug Policy). The Drug Policy prohibits employees from using,
possessing, transferring, or being under the influence of any controlled substance, drug
or other intoxicant. The Drug Policy further prohibits the use of illegal drugs on or off
duty. The Drug Policy defines “illegal drugs” as “any controlled substance (including
the presence of their metabolites) of which the sale, possession or use is prohibited
under state or federal law. Illegal drugs specifically include, among others, marijuana,
cocaine, and opiates.” Reproduced Record (R.R.) at 172a. In addition, the Drug Policy
provides that Employer may subject employees to random drug screenings.
               During Claimant’s new employee orientation, Employer’s human
resources (HR) assistant explained Employer’s drug testing protocol. She informed
the new employees that if an employee was selected for a drug screening and the
medical review officer (MRO) contacted the employee to inquire about medical
prescriptions that may affect the drug test results, the employee would have three days
to verify his/her prescriptions. If the employee did so, the test results would not be
released to Employer.
               On May 24, 2019, a medical professional prescribed medical marijuana to
Claimant.      On June 10, 2019, Claimant received a medical marijuana patient
identification card. Pursuant to the Drug Policy, on June 25, 2019, Employer selected
Claimant for a random drug screening. Claimant tested positive for marijuana. On
June 28, 2019, Claimant submitted a copy of his medical marijuana patient
identification card to the MRO who administered his drug screening. The MRO,
nevertheless, forwarded the drug test results to Employer. On July 3, 2019, Employer’s
director and two HR representatives met with Claimant regarding his positive drug test.
Despite that Claimant presented his medical marijuana patient identification card,
Employer discharged him because marijuana is classified as an illegal substance under
federal law.


                                           2
               Claimant applied for UC benefits. The Scranton UC Service Center
determined that Claimant was ineligible for UC benefits under Section 402(e.1) of the
Law. Claimant appealed and a Referee held a hearing. On September 3, 2019, the
Referee affirmed the UC Service Center’s determination. Claimant appealed to the
UCBR, which reversed the Referee’s decision. Employer appealed to this Court.2 On
March 12, 2020, Claimant intervened in this matter.
               Employer argues that the UCBR erred as a matter of law by requiring
Employer to satisfy an additional burden of proving that Claimant knowingly or
intentionally violated its established Drug Policy. Specifically, Employer contends that
the burden of proof under Section 402(e.1) of the Law requires only that Employer
demonstrate the existence of an established substance abuse policy and that Claimant
violated the policy. Thus, Employer declares that Section 402(e.1) of the Law does not
require, as the UCBR mandated, proof that Claimant knowingly or intentionally
violated the Drug Policy.
               The UCBR rejoins that Employer, rightfully, has a policy prohibiting
employee use of illegal substances. However, the UCBR maintains that Claimant was
unaware that Employer would discharge him for using lawfully prescribed medical
marijuana. Accordingly, the UCBR asserts that, while this Court has not explicitly
held that knowledge or intent to violate an employer’s substance abuse policy is
required within the employer’s burden of proof under the drug testing provision of the
Law, such a requirement is obvious and not burdensome.




       2
         “‘Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.’ Miller v. Unemployment Comp. Bd. of Review, 

83 A.3d 484

, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Review, 

197 A.3d 842

, 843 n.4 (Pa. Cmwlth.
2018).


                                                 3
             The UCBR further avows that Employer fully admitted that it excuses
positive drug test results when employees furnish the MRO a prescription. Therefore,
it argues, Employer failed to adhere to its Drug Policy when it discharged Claimant
after he presented his medical marijuana patient identification card. The UCBR further
contends that Employer offered no clear explanation as to why it did not excuse
Claimant’s positive test result for prescribed medical marijuana as the HR assistant
explained at the employee orientation, other than Employer followed federal law. The
UCBR insists that federal law has no relevance or connection to Claimant’s job, and
disqualifying Claimant from UC benefits when Claimant acted pursuant to a lawful
prescription would lead to an absurd result here.
             Section 402(e.1) of the Law provides that an employee shall be ineligible
for UC benefits for any week

             [i]n which his unemployment is due to discharge . . . due to
             failure to submit and/or pass a drug test conducted pursuant
             to an employer’s established substance abuse policy,
             provided that the drug test is not requested or implemented
             in violation of the law or of a collective bargaining agreement
             [(CBA)].

43 P.S. § 802(e.1).

             To render an employee ineligible for UC benefits under
             Section 402(e.1) of the Law, an employer is required to
             demonstrate (1) that it had an established substance
             abuse policy and (2) that the claimant violated the policy.
             UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 

851 A.2d 240

, 252 (Pa. Cmwlth. 2004) [ ]. If an employer meets
             its initial burden, a claimant will be rendered ineligible for
             benefits unless the claimant is able to demonstrate that the
             employer’s substance abuse policy is in violation of the law
             or a CBA.

Id. (‘The terms of

[the employer’s substance
             abuse] policy may be trumped by statute or [CBA], but it is
             the claimant’s burden to develop the record appropriately to
             succeed in that defense.’). Greer v. Unemployment Comp.
             Bd. of Review, 

4 A.3d 733

, 736 (Pa. Cmwlth. 2010) (footnote
             omitted).

                                           4
Bowers v. Unemployment Comp. Bd. of Review, 

165 A.3d 49

, 52-53 (Pa. Cmwlth.
2017) (emphasis added).
               The UCBR determined Claimant was not disqualified for UC benefits
under Section 402(e.1) of the Law, opining:

               [C]laimant credibly testified that he is prescribed medical
               marijuana. The [UCBR] notes that medical marijuana is
               legal under Pennsylvania law. Likewise, the [UCBR]
               recognizes that there is a current conflict with respect to the
               legality of [medical] marijuana under Pennsylvania and
               [f]ederal law, and that the employer’s [Drug P]olicy appears
               to prohibit ‘marijuana’ as defined under [f]ederal law. But []
               [C]laimant credibly testified that he was advised by []
               [E]mployer in orientation that he would not be discharged if
               he provided a valid prescription to the MRO after his drug
               testing. [] [C]laimant did so, but [] [E]mployer opted to
               proceed with his discharge. While [] [E]mployer’s witness
               credibly testified that medical marijuana was not discussed
               in orientation, it is incumbent upon [] [E]mployer to remedy
               such ambiguity and to clarify the dictates of its [Drug
               P]olicy, especially given the conflict between [f]ederal and
               [s]tate law. Moreover, [E]mployer’s witness acknowledged
               that she was aware of Pennsylvania’s Medical Marijuana
               [Act].[3]
               [] [C]laimant’s use of medical marijuana was legal under
               Pennsylvania law, and he complied with [] [E]mployer’s
               directive to forward the valid medical prescription after his
               drug test. Considering these circumstances, the [UCBR]
               does not find that [] [E]mployer satisfied its burden of proof
               to show that [C]laimant knowingly or intentionally violated
               its established substance abuse policy. Therefore, []
               [C]laimant cannot be ineligible [for UC benefits] under
               Section 402(e.1) of the [] Law.

UCBR Dec. at 3.




      3
          Act of April 17, 2016, P.L. 84, 35 P.S. §§ 10231.101-10231.2110.


                                                 5
            Importantly,

            it is to be remembered that the . . . Law is a remedial statute,
            and, excepting the sections imposing taxes, its provisions
            must be liberally and broadly construed so that its objectives
            (insuring that employees who become unemployed through
            no fault of their own are provided with some semblance of
            economic security) may be completely achieved.

A Special Touch v. Dep’t of Labor & Indus., 

228 A.3d 489

, 503 (Pa. 2020) (quoting
Wedner v. Unemployment Comp. Bd. of Review, 

296 A.2d 792

, 796 (Pa. 1972)).
            In the instant case, Employer’s Drug Policy expressly states:

            [I]ndividuals may use legal over-the-counter medications or
            prescription drugs while at work strictly in accordance
            with the product instructions or a physician’s prescription
            provided, however, that the use of such substances does not
            adversely affect the individual’s ability to perform his or her
            job, or to do so in a safe manner.

R.R. at 170a (emphasis added). Further, the Drug Policy defines “legal drug” as
“prescription medications and over-the-counter medications that have been legally
obtained and are being used only in the manner, combination or quantity for
which they were prescribed or manufactured.” R.R. at 173a (emphasis added).
Moreover, Employer explained in its Drug Policy:

            We recognize that employees may need to use legal drugs
            from time to time for medical reasons. The possession or use
            of legal drugs while on [Employer’s] premises, during
            work hours and/or when performing any [Employer]
            business, including when driving vehicles, is permitted,
            provided such use or influence does not affect the safety of
            the employee, co-workers, customers or the public, an
            employee’s job-performance or the safe or efficient
            operation of [Employer] facilities, equipment and vehicles.

R.R. at 174a (emphasis added).




                                           6
             In addition, Section E of the Drug Policy provides, in relevant part:

             Medical Review Officer Procedure
             All individuals whose test results are confirmed to be
             positive . . . will be so notified by the [MRO]. Upon
             receiving notice of the test result, the individual will be given
             the opportunity to explain to the MRO any medical
             reasons that would account for the laboratory findings.
             If the individual chooses to take advantage of this option,
             he/she must do so within 72 hours of receiving notice from
             the MRO of the confirmed positive test result. The MRO
             will consider the individual’s explanation and, if the
             individual’s explanation is acceptable to the MRO, the
             positive test result will be reported as a verified negative.
             If an adulterated, substituted or invalid result is determined
             to be caused by medication or a medic I condition, the MRO
             will cancel the test. If the MRO determines that the
             individual’s explanation is not satisfactory, the test result will
             be reported as a verified positive or a refusal to test.

R.R. at 183a (text emphasis added). The above provision was explained to Claimant
at his new employee orientation. Specifically, the UCBR found as a fact:

             The HR assistant explained the drug testing protocol in []
             [C]laimant’s orientation. She informed the new employees
             that if an employee is selected for a drug screening and the
             [MRO] reaches out to them [sic] to inquire about medical
             prescriptions that may affect the results, the employee will
             have three days after this follow-up to verify their [sic]
             prescriptions. If they [sic] do so, the test result will not be
             released to [] [E]mployer.

UCBR Dec. at 1-2, Finding of Fact 5. Employer did not challenge this finding of fact.
             Given the language of Employer’s Drug Policy and Employer’s HR
assistant’s explanation thereof, this Court concludes that the Drug Policy is ambiguous
regarding the use of prescription drugs.

             As with contracts, we construe any ambiguity in the [Drug
             Policy] against [Employer] as drafter of the document. See
             generally Sun Co., Inc. v. [Pa.] Turnpike Comm’n, 

708 A.2d 7

             875, 878-79 (Pa. Cmwlth. 1998) (‘Ambiguous language in a
             contract is construed against the drafter and in favor of the
             other party if the latter’s interpretation is reasonable.’).

Jay Twp. Auth. v. Cummins, 

773 A.2d 828

, 832 n.3 (Pa. Cmwlth. 2001).
             “[T]he statutory language clearly provides that to be ineligible for UC
benefits under Section 402(e.1) of the Law, the drug test must be in accordance with
employer’s substance abuse policy.” Katera’s Kove, Inc. v. Unemployment Comp.
Bd. of Review, 

130 A.3d 800

, 804 (Pa. Cmwlth. 2015) (emphasis added). Here,
Employer’s Drug Policy expressly permits “individuals [to] use . . . prescription drugs
while at work strictly in accordance with . . . a physician’s prescription[.]” R.R. at
170a. Further, the Drug Policy defines “legal drug” as “prescription medications . . .
that have been legally obtained[,]” R.R. at 173a, and explicitly states that “[t]he
possession or use of legal drugs while on [Employer’s] premises, during work hours
and/or when performing any [Employer] business . . . is permitted[.]” R.R. at 174a.
             Moreover, Employer’s Drug Policy provides that “[a]ll individuals whose
test results are confirmed to be positive . . . will be given the opportunity to explain to
the MRO any medical reasons that would account for the laboratory findings.” R.R.
183a. “The MRO will consider the individual’s explanation and, if the individual’s
explanation is acceptable to the MRO, the positive test result will be reported as a
verified negative.”

Id. (emphasis added). The

HR assistant reiterated this aspect of
Employer’s Drug Policy at Claimant’s new employee orientation.
             Consequently, because Claimant provided the MRO with his valid patient
identification card to explain his use of prescribed medical marijuana, this Court cannot
conclude that the MRO’s reporting of Claimant’s drug test as positive was “in
accordance with employer’s substance abuse policy.” Katera’s Kove, Inc., 

130 A.3d 8

at 804.4 Accordingly, given the remedial nature of the Law to protect “employees who
become unemployed through no fault of their own,” A Special 

Touch, 228 A.3d at 503

(quoting 

Wedner, 296 A.2d at 796

), this Court holds that the UCBR did not err by
granting Claimant UC benefits.
              For all of the above reasons, the UCBR’s order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge




       4
         Given the Court’s disposition of the case based on the language of Employer’s Drug Policy,
it does not reach the issue of whether the UCBR erred by requiring Employer to satisfy an additional
burden of proving that Claimant knowingly or intentionally violated Employer’s Drug Policy.
                                                 9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA



The Pittsburgh Water and Sewer        :
Authority,                            :
                  Petitioner          :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 228 C.D. 2020
                 Respondent           :


                                   ORDER

            AND NOW, this 18th day of November, 2020, the Unemployment
Compensation Board of Review’s January 31, 2020 order is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge

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