Unemployment benefits for employee who didn't mean to inhale

Last week in KBR Technical Services, Inc. v. K.U.I.C. (unpublished), the Ky. COA affirmed the Hardin Circuit Court's Order affirming the award of unemployment benefits to a former KBR employee.  The employee was terminated after he tested positive for marijuana during a random drug test.  KBR had a policy prohibiting employees from, among other things, being under the influence of prohibited drugs.  At the UI Referee hearing the employee "testified that he had been assaulted by two acquaintances the day before the random drug test.  The two men held him down and blew marijuana smoke into his mouth."

The Referee didn't buy the story, but -- ultimately -- the UI Commission did.  The UI found that the employee had not knowingly violated the anti-drug policy and did not commit misconduct.  On appeal to the Hardin Circuit Court, and ultimately the COA, KBR argued that "a specific intent to violate an employer's policy is not necessary to establish a knowing violation sufficient to constitute misconduct."  Basically, KBR was arguing that, even if you believe he didn't mean to inhale the pot smoke, he did, and when he reported to work the next day he was "under the influence" -- as defined by the policy -- and thereby intentionally violated the policy.

Neither the Hardin Circuit Court nor the COA agreed with KBR.  The COA cited, repeatedly, that UI laws are to be construed in a manner to grant, not deny, benefits. The COA stated,

"for purposes of determining whether an individual is eligible to receive unemployment benefits, the entire circumstances surrounding the violation must be reviewed.  Under the unique circumstances surrounding the violation in this case, it is clear that [the employee] did not willfully disregard KBR's drug policy, in that he had marijuana in his system through no fault of his own.  Furthermore, there is no evidence that [the employee] knew he would fail the random drug test or that he still had a measurable amount of marijuana in his system when he reported to work."

Dicta Alert:  Note that KRS 341.370(6) provides that a discharge for "reporting to work under the influence of alcohol or drugs" is a discharge for misconduct.  On appeal KBR raised this statutory issue. The COA held that the issue was not preserved below, and therefore did not need to decide this case on that issue.  BUT -- the COA stated in dicta that "being under the influence" requires proof of impairment.  I.e. having trace amounts of dope in your system does not mean you are "under the influence" provided you are not impaired.