Matthew J. Dillon, Petitioner
Unemployment Compensation Board of Review, Respondent
SUBMITTED: October 5, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
BONNIE BRIGANCE LEADBETTER, Judge.
Employer Appleton Papers discharged Claimant Matthew J. Dillon from employment for testing positive for alcohol in violation of its substance abuse policy. Claimant petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed, as modified, the decision of a referee and denied him unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law),  the general willful misconduct provision, instead of Section 402(e.1),  the specific willful misconduct provision pertaining to an employee's failure to submit to and/or pass a drug test conducted pursuant to an employer's established substance abuse policy. By way of background, the Altoona UC Service Center and the referee initially determined Claimant's eligibility for benefits under Section 402(e.1), but the Board on appeal remanded the matter to place Section 402(e) at issue, concluding that alcohol testing was outside the purview of Section 402(e.1). Because Claimant's eligibility should have been analyzed under Section 402(e.1), we conclude that the Board erred in remanding this matter. Nonetheless, we affirm its order denying Claimant benefits.
Claimant worked for Employer from October 2000 to September 2011. Last employed as a full-time apprentice pipe fitter at $20 per hour, Claimant's job duties included operating a forklift, changing propane tanks, handling chemicals and pressurized containers, welding and using power tools. Claimant was aware that Employer prohibited employees from working with a breath-alcohol content (BAC) in excess of 0.02% and that it conducted random tests to ascertain compliance. In December 2010, due to an allegedly positive BAC test, Claimant signed a last-chance agreement subjecting him to post-rehabilitation testing for twelve months and advising him that another positive BAC test would result in disciplinary action up to and including discharge from employment. December 1, 2011 Hearing, Employer's Exhibit E-2. In September 2011, Claimant tested positive for a BAC in excess of 0.02%. The following month, Employer discharged him for violating its substance abuse policy.
As an initial matter, we reiterate this Court's prior holdings that the proper provision under which to analyze discharges where an employee fails to submit to and/or pass a drug test is Section 402(e.1) and not Section 402(e). Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277, 1280-81 (Pa. Cmwlth. 2008); Turner v. Unemployment Comp. Bd. of Review, 899 A.2d 381, 384 (Pa. Cmwlth. 2006); UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240, 245 (Pa. Cmwlth. 2004). Most notably, in Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841 (Pa. Cmwlth. 2005), this Court analyzed an alcohol-related violation of a substance abuse policy under Section 402(e.1). Notwithstanding our previous decisions, however, the Board suggests that the legislature did not intend to include alcohol within the purview of Section 402(e.1) because it makes no specific reference to alcohol in that provision. We reject the Board's position.
Section 402(e.1) provides that that an employee shall be ineligible for compensation for any week
[i]n which his unemployment is due to discharge or temporary suspension from work 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.
While it is true that the legislature did not include the word alcohol in Section 402(e.1), we conclude that interpreting that provision to exclude alcohol would render an unreasonable result, fail to give effect to all of the words therein and fail to promote the public interest contrary to the edicts of Sections 1922(1), (2) and (5) of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1922(1), (2) and (5).
First, we note that the courts of this Commonwealth have long considered alcohol use and/or abuse, like drug abuse, to constitute willful misconduct under certain circumstances, and for the same reasons. E.g., Cornyn v. Unemployment Comp. Bd. of Review, 316 A.2d 158, 159 (Pa. Cmwlth. 1974) (intoxication during working hours constitutes willful misconduct). This is due to "the easily recognized manifestations of excessive drinking, [and] also any abnormal mental or physical condition from over-indulgence which deprives an employe of the clearness of intellect or muscular control necessary for the proper performance of his work." Hassen Unemployment Comp. Case, 150 A.2d 158, 160 (Pa. Super. 1959). With the addition of Section 402(e.1), however, it is no longer necessary for an employer with a substance abuse policy to establish general willful misconduct; it is sufficient for the employer to establish the substance abuse policy and its violation.
Second, we conclude that interpreting Section 402(e.1) to exclude alcohol would render an unreasonable result because many employers when crafting their substance abuse policies equate alcohol with drugs as a substance that employees can abuse to the detriment of other employees, the company and the public at large. As Employer stated in the substance abuse policy at issue: "The safety and health of employees and their families, protection of Company property, quality of our products and financial performance of our Company can be directly and adversely affected by the use of alcohol, drugs or controlled substances." December 1, 2011 Hearing, Employer's Exhibit E-1 at 18.
Moreover, in Architectural Testing, we held that the refusal to take a test mandated by an established substance abuse policy was the equivalent of failing the test for purposes of 402(e.1). Where, as here and in the usual case, the employer's policy covers impairment from either alcohol or drugs, it could often be impossible to tell which was involved in the case of a refusal to be tested. As this Court has noted, statutes should be construed to receive a sensible construction and, if possible, to avoid absurdity and mischief. Capital Acad. Charter Sch. v. Harrisburg Sch. Dist., 934 A.2d 189, 193 (Pa. Cmwlth. 2007); 1 Pa. C.S. § 1922(1). In addition, statutes should be interpreted to promote the public interest as against any private interest. 1 Pa. C.S. § 1922(5).
Third, giving effect to all of the words in Section 402(e.1), including the phrase "substance abuse, " we conclude that the legislature intended to include alcohol as a substance that is subject to abuse within the meaning of that provision. 1 Pa. C.S. § 1922(2) (presumption that legislature intends entire statute to be effective and certain). The Board suggests that the legislature did not intend to include alcohol because it is not "normally" considered to be a drug, it can be purchased legally and it may be reasonable for some employees, i.e., salespersons, to consume alcohol at a business lunch. In spite of the more common usage of the term "drug" to refer to pharmaceuticals or illegal substances, Black's Law Dictionary 571 (9th ed. 2004) defines "drug, " inter alia, as a "natural or synthetic substance that alters one's perception or consciousness." Included in the many definitions of "drug" listed in Webster's Third New International Dictionary (Unabridged) 695 (1993) are both, "a substance other than food intended to affect the structure or function of the body of man" and "something that is narcotic in its effect." Similarly, Stedman's Medical Dictionary 522 (26th ed. 1995), lists as one definition, "General term for any substance, stimulating or depressing, that can be habituating or addictive. . . ." Clearly alcohol falls within these less common but recognized usages.
Moreover, with respect to the Board's legal/illegal distinction, we note that physician-prescribed and over-the-counter pharmaceutical drugs are also legal but, like alcohol, can have serious negative consequences when abused or when used in an improper setting, such as when driving or operating heavy machinery. Many employers, such as the one here, acknowledge in their work rules the fact that a reasonable consumption of alcohol during working hours may be acceptable under narrow circumstances. It is precisely because the risks associated with substance abuse vary widely, depending on the nature of the industry and the job duties involved, that Section 402(e.1) comes into play only where the employer has specifically ...