The Pennsylvania Supreme Court has held that an employee’s refusal to take a random drug test under an employer’s drug-free workplace policy is "willful misconduct" under the Pennsylvania Unemployment Compensation law. In a case in which Reed Smith attorneys Robert B. Cottington and Catherine S. Ryan represented Duquesne Light Company, the Supreme Court indicated its disapproval of drug use by employees just as strongly as, the month before, it condemned sexual harassment in the workplace.(fn1) Rebel v. Unemployment Comp. Bd. Of Review, No. 76 W.D. Appeal Docket 1997 (Dec. 22, 1998), aff’g 692 A.2d 304 (Pa. Cmwlth 1997).
The decision is very significant to all Pennsylvania employers who are striving to maintain drug-free work environments. Without the decision, some employees may have felt that, if their employment were terminated for refusing to take part in random drug testing, they might nevertheless qualify for unemployment compensation benefits. The Supreme Court’s holding that such refusal is "willful misconduct" disqualifying them from unemployment benefits is a strong endorsement of the random testing which is at the heart of any drug-free workplace program.
The Rebel case arose in 1995 when a 20 year electrical engineer(fn2) employed by Duquesne Light Company refused to take part in a well publicized urinalysis drug test which was part of Duquesne Light’s effort to maintain a drug-free workplace. According to the Supreme Court, he explained that "he had no intention of being tested and that he did not believe in the program." When his employment was terminated due, in part, to his refusal to comply with the drug testing policy, he applied for unemployment benefits but the unemployment office and referee denied him benefits because his refusal to participate in the test was "willful misconduct" under the unemployment compensation law.(fn3) The Unemployment Compensation Board of Review and Commonwealth Court affirmed.
Chief Justice Flaherty, writing for the Supreme Court, recited the employee’s reasoning for contending that Duquesne Light’s drug testing program violated his privacy rights.
"He complains that the program was not adopted with the employees’ consent, and he characterizes the program as being draconian in its intrusiveness. In particular, he objects that it is not limited to those in safety-sensitive positions or those with a history of substance abuse, that it can cause employees to reveal personal medical information about their health and prescriptions, that it subjects employees to indignities when urine samples are collected, and that it is not justified on the basis of existing levels of employee drug use or drug-related workplace accidents. He argues, therefore, that he had good cause for refusing to comply with the program. We do not agree." (Footnote omitted.)
After noting that the neither the United States or Pennsylvania Constitutions were implicated because Duquesne Light is a private employer and there was no governmental action, the Pennsylvania Supreme Court delivered a ringing endorsement of drug-free workplaces which will be a comfort to all Pennsylvania employers and employees.
"Upon weighing the employer’s interest in the drug testing program against the burden to employees, we conclude that the program is a reasonable one. [The employee] has an implied obligation, therefore, to comply.
"The employer has a strong interest in maintaining a workplace that is free from the influence of drugs. This is true of the entire work site, not just areas that are regarded as highly safety-sensitive. Employees who have consumed drugs can incur reductions in their productivity, reliability, and competency, thereby adversely affecting the employer’s interests. In turn, interests of customers can be detrimentally affected as well. There are also overriding concerns of safety and liability. Workplace safety is obviously undermined by employees who are impaired in their physical and mental capacities. Not only are fellow workers endangered, but the public is likewise placed at risk. The avoidance of injury, as well as concern for vicarious liability that can accrue to the employer, are legitimate interests of the employer that must be accorded substantial weight.
"[The employee’s] objection that Duquesne Light adopted the testing program without having obtained the employees’ consent is groundless. The creation of rules and requirements that govern the workplace is the prerogative of the employer….
"Further, [the employee’s] characterization of the program as being draconian in its intrusiveness is simply not supported by the record. The drug testing is conducted in off-site medical facilities where employees are tested in a confidential and professional manner, and urine samples are obtained in conformity with standardized testing procedures….
"Nor is there basis for [the employee’s] contention that the program results in broad disclosures of personal medical conditions. The drug test makes no generalized inquiry into such conditions. Those being tested are asked to reveal prescriptions and non-prescription drugs that they have consumed in the preceding thirty days, and this information is used only to confirm reasons for positive test results. The information is not disclosed to others.
"Further, the only drugs for which random testing is conducted are marijuana, cocaine, opiates, phencyclidine, and amphetamines, i.e., ones which the employer has a legitimate interest in excluding from the workplace. [The employee’s] suggestion that testing for these drugs should be confined to employees with a known history of substance abuse is without merit. There is no basis for belief that the only drug users in the workplace are those whose prior use is already known to the employer.
"We conclude that the testing program of Duquesne Light was narrowly tailored to meet the employer’s needs and that it did not unduly intrude on [the employee’s] privacy interests. Hence, it was reasonable. [The employee’s] failure to cooperate with the program was without good cause. Willful misconduct was properly found, and the denial of unemployment benefits was, therefore, proper."
In sum, this decision(fn4) is a legal roadmap and ringing endorsement of employer efforts to create drug-free workplaces for Pennsylvania employees. Reed Smith has assisted many employers in adopting policies designed to foster drug-free workplaces. If you would like to examine the appropriateness of a drug testing program for your workplace, you may contact Rob Cottington or Casey Ryan whose arguments were adopted in this case by the Pennsylvania Supreme Court as the law of Pennsylvania, or one of the other Reed Smith attorneys listed below.
(fn1) For an analysis of the Pennsylvania Supreme Court’s holding in the sexual harassment case, Hoy v. Angelone, 1998 WL 808634 (Pa.S.Ct. 1990), you may wish to read Reed Smith Bulletin 98-47 on the Reed Smith web page at http://www.rssm.com.
(fn2) He was a non union employee but, as the Supreme Court noted, the Union which represented Duquesne Light’s unionized employees had approved the random drug testing program.
(fn3) Section 402 of the Pennsylvania Unemployment Compensation statute provides: "An employee shall be ineligible for compensation for any week…(e) in which his unemployment is due to his discharge or temporary suspension from work for his willful misconduct connected with his work…. 43 P.S. Section 802. (fn4) Two Justices filed additional opinions. Justice Zappala agreed with the Court’s decision and analysis but emphasized "that this decision has absolutely no ramifications with respect to actions based in tort based upon invasion of privacy, or the protection against unreasonable government intrusions provided by the state and federal constitutions." Justice Nigro concurred and dissented. While he agreed that Duquesne Light "could discharge [the employee] for his failure to comply with its new policy" he nevertheless opined that the employee should have been awarded benefits because the policy was adopted after he was hired and was a policy which "implicates a person’s sense of privacy." All other Justices did not agree with Justice Nigro’s reasoning.