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HAL G. ZANG Petitioner/Appellant
vs.
JAMES DAVENPORT COMMISSIONER TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY and NASHVILLE BRIDGE COMPANY Respondents/Appellees.
 
Case:
Appeal No. 01-A-01-9501-CH-00024
 
Location:
COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
 
Attorneys:
FOR PETITIONER/APPELLANT: THURMAN T. McLEAN JR. Nashville Tennessee.
FOR RESPONDENTS/APPELLEES: CHARLES W. BURSON Counsel General and Reporter. SANDRA E. KEITH Assistant Counsel General Nashville Tennessee.
 
Court:
HENRY F. TODD PRESIDING Court MIDDLE SECTION CONCUR: SAMUEL L. LEWIS Court BEN H. CANTRELL Court
 
Author:
The Hon. Justice Henry F. Todd
 

This is a judicial review of an administrative decision denying unemployment compensation to the plaintiff; a non-union employee of Nashville Bridge Company. The Trial Court affirmed the administrative decision and the plaintiff-employee appealed to this Court presenting a single issue as follows:

Does the failure of an employee to complete a drug rehabilitation program constitute deliberate and willful misconduct connected with his employment absent any material and substantial evidence in the record that the employee was under the influence of illegal drugs while on the job?

T.C.A. Title 50 Chapter 7 contains a comprehensive plan for providing weekly benefits to unemployed persons. It is not disputed that plaintiff was employed under circumstances which entitled him to unemployment benefits unless disqualified by some provision of the unemployment compensation law (Title 50 Chapter 7).

The administrative decision which was affirmed by the Trial Court reads as follows:

Findings of Fact: Claimant's most recent employment prior to filing this claim was with Nashville Bridge as a welder from January 28 1990 until August 12 1993. Claimant was injured on the job. He was instructed to take a drug test which he did not pass. He entered a drug rehabilitation program but did not complete it. He was discharged. The employer policy required all employees who failed a drug test must complete a rehabilitation program.

Conclusions of Law: The Appeals Tribunal finds claimant was discharged for misconduct connected with work under T.C.A. Section 50-7-303(a)(2). The facts show claimant disregarded the employer's interests and willfully acted against the best interests of the employer. Claimant was discharged because he failed to complete a drug rehabilitation program after he failed a drug test. He entered a program but left before it was completed. This is misconduct. The Agency decision is affirmed.

T.C.A. Section 50-7-303(a)(2) reads as follows:

50-7-303. Disqualification for benefits. - (a) Disqualifying Events. A claimant shall be disqualified for benefits:

(2) If the commissioner finds that a claimant has been discharged from such claimant's most recent work for misconduct connected with such claimant's work such disqualification shall be for the duration of the ensuing period of unemployment and until such claimant has secured subsequent employment covered by an unemployment compensation law of this state or another state or of the United States and was paid wages thereby ten (10) times such claimant's weekly benefit amount; . . . .

In Cherry v. Suburban Mfg. Co. Tenn. 1988 745 S.W.2d 273 the Supreme Court said:

It has long been settled in this state however that a justifiable discharge is not in and of itself misconduct connected with his work so as to disqualify an employee under the statute. The quoted phrase is a very general one and each case must be determined in light of all of the facts and circumstances attendant upon the employee's termination. At a minimum however the cases are clear that the burden of proving a disqualification is on the employer; and in order to establish a disqualification there must be shown a material breach of some duty which the employee owes to the employer. See generally Weaver v. Wallace 565 S.W.2d 867 870 (Tenn. 1978) where Court said: . . .

Cherry 745 S.W.2d at 273.

In Weaver v. Wallace Tenn. 1978 565 S.W.2d 867 the Supreme Court said:

. . . The unemployment compensation statutes were enacted for the benefit of unemployed workmen and are to receive a liberal interpretation by Court. . . . The disqualification because of "misconduct connected with their work" provision being penal in nature is to be construed liberally in favor of the employee so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception. . . .

. . . The general outline of the scope of the intended disqualification is well stated at 81 C.J.S. Social Security SEC . 222 (1977) as follows:

Depending on the specific provisions of the statute in order to disqualify an employee for unemployment benefits his misconduct must be in the course of his most recent work connected with his work or connected with the employment. Under such provisions it is not necessary that the act of misconduct occur during the working hours or at the place of employment so long as it is connected with the employment and the fact that misconduct relates to the private life or off-duty activities of the employee does not necessarily preclude its having a connection with the employment requisite to bar the right to compensation. Ordinarily however an employee's conduct off the working premises or outside the course or scope of his employment is not considered as misconduct in connection with employment.

In our opinion the standard to be applied is that of the employment contract whether express or implied which fixes the employee's duties in connection with his work; an essential element of "misconduct connected with the work" is a breach of duty owed to the employer as distinguished from society in general. . . . Unless the employee's wrongdoing violates a duty owed to the employer it cannot amount to that "misconduct connected with his work" which serves to disqualify him to receive unemployment insurance benefits although it may fully justify the employer in discharging him. [citing authorities]

Weaver 565 S.W.2d pp.869-70.

The administrative record has been examined to determine whether the employer satisfied its burden of proving misconduct to disqualify plaintiff from receiving unemployment benefits.

The administrative record consists of documents and the testimony of plaintiff who appeared without Counsel.

On September 2 1993 plaintiff filed his claim supported by a "Lay Off Form" dated August 18 1993 containing the following:

Temporary Layoff

Effective Layoff Date 8-18-93

Date To Return To Work

Reason For Layoff Indefinite suspension - policy violation.

/s/ Jim Smithson

Supervisor's Signature

On the same date September 2 1993 plaintiff signed a "Claim Statement" containing the following:

b. If you were discharged for violation of a company or union rule please explain: failed drug screen

c. Had your employer ever warned you about the conditions causing your discharge? No.

7. Additional Claimant Statement: (Please add any additional information about your separation from work which you feel is important): I got hurt on job and they sent me to doctor. Company policy states anyone sent off job site for injury must take drug screen. I failed. I do not use drugs - wouldn't let me re-test.

In order to keep my job I had 15 days to go to rehab - I did not need it and I need money to live - I didn't need rehab so - I did go and did not stay - it was going to be too long with no income.

On the same date September 2 1993 a "Notice of Claim Filed and Request for Separation Information" was sent to the employer containing "Remarks as follows:

Claimant states he was discharged because he failed a drug test - he was not permitted to retake the test even though he had not used any drugs not prescribed. Please verify.

The response of the employer, quoted hereafter, contains no compliance with the request of the agency to verify" claimant's statement that he was refused a re-test. His statement therefore stands uncontradicted.

The response of the employer was:

Hal Zang was terminated due to violation of Company policy.

Enclosed is a copy of the mutual agreement between Nashville Bridge Company and the Ironworker's Union Local # 733 under which Hal Zang was covered. The agreement states that an employee who tests positive for an illegal substance must enter a rehabilitation program within fifteen days and complete the program in order to maintain seniority with the Company.

Enclosed is a copy of the correspondence from Baptist Drug & Alcohol Recovery Center advising that Hal was admitted to the Center but failed to complete the program. Hal notified the Company on Sept. 1 1993 that he would not complete a program.

Hal was terminated in accordance with the Company/Union mutual agreement.

Attached to the employer's response was the following document:

Mutual Agreement

It being the desire and responsibility of the parties hereto signatory below to provide a safe and healthful work environment free of illegal drugs and alcohol abuse hereby agree as follows:

(1) All employees of NABRICO who sustain a work-related injury requiring off-site medical services shall be required to submit to a chemical substance test at the time of initial treatment.

(2) Employees who test positive shall immediately be placed on indefinite suspension pending the following action:

a) Employees who within 15 working days apply and enter a legitimate agency specializing in the treatment of drug and alcohol abuse and who successfully complete the rehabilitation program may return to work without loss of seniority.

b) Employees who refuse treatment and fail to enter a drug and alcohol rehabilitation program within the time period above shall be discharged and their seniority terminated.

(3) Employees who refuse to submit to chemical substance testing will be discharged.

(4) NABRICO will provide assistance to employees who wish to participate in an alcohol and drug treatment program.

(5) The Nashville Bridge Company Drug and Alcohol Abuse Policy Statement Effective March 18 1989 is incorporated by reference as though set forth herein in its entirety.

(6) The above constitutes the entire agreement by and between the Parties effective September 1 1992.

IN WITNESS WHEREOF the Parties have this date 7/30/92 affixed their respective signatures below:

for the Union for the Company

/s/ Homer Hutcherson /s/ Jim Smithson

/s/ Paul Morgan /s/ Lissa McHugh

/s/ Billy Ray Hall

The record contains no enlightenment as to the name of the union for which the foregoing instrument was executed or the nature of the relationship of the union with the employer or any of its employees especially plaintiff

Also attached to the employer's response was the following letter:

Baptist Drug & Alcohol Recovery Center

2000 Church Street - Nashville Tennessee 37236

August 27 1993

Lisa McHugh

c/o Nashville Bridge

P.O. Box 239

Nashville TN 37202

Dear Ms. McHugh

This letter is to inform you that Hal Zang was admitted to the Baptist Drug and Alcohol Recovery Center on 8/25/93; however he did not complete treatment; he left against medical advice on 8/26/93. Subsequently he would not be a candidate for readmission at this time. If you have any questions please feel free to contact me at 329-7777.

Thank you

/s/ Bryson Gibbs RN

Nurse Assessment Counselor

BG/mm

The "Agency Decision" reads as follows:

Decision:

Claimant was discharged from most recent employment for failure to complete a mandatory drug rehabilitation program. Record indicates this is policy when an employee fails a drug screen.

This is considered work-related misconduct. Claim is denied under T.C.A. 50-7-303.

Plaintiff appealed the decision to the "Appeals Referee who held a hearing at which plaintiff was the only interested party to appear, and he appeared without Counsel. He testified in pertinent part as follows:

Ms. Podis: . . . Do you have any questions or objections to entering the documents into the record?

Mr. Zang: No -no, ma'am. I don't - I've never done this before. I don't even know what you're doing. All I know is what I know and that --

Ms. Podis: Okay. Go ahead and tell me what happened.

Mr. Zang: Well, I got hurt on the job. It's a union job, which I'm not in. The union has an agreement with the company that anyone that fails a - a drug test, drug screen, is to get some kind of rehabilitation. Not with me, I don't have, but I do have where I went into two different times to get into the treatment. They wanted to keep me at least thirty days and then I have to go six weeks out patient, still before I could even go back and start getting a paycheck.

Ms. Podis: Uh-huh.

Mr. Zang: I recently got married. I've got kids and everything, and - I mean, I just can't afford to do that. I worked at the bridge company on and off for about 15 years. I started when I was real young and I went to school during the day and I worked the night shift at night.

Ms. Podis: Uh-huh.

Mr. Zang: And all I want is - they - they've got the paper here.

Ms. Podis: Let me see that.

Mr. Zang: It was discharged, violation of company property - policy, and all I want is the opportunity to draw what I'm rightfully - I feel that I rightfully have coming to me, until I can find another job. I'm able and willing and looking for it.

Ms. Podis: All right.

Ms. Podis: Uh-huh. When did you have - when were you hurt on the job? Do you --

Mr. Zang: What day was that - what day was it I went in there?

Ms. Podis: You said August 12th.

Mr. Zang: 8/12. I'm sorry. I know it was the 12th.

Ms. Podis: It was - okay. So that's the same day you had the drug test?

Mr. Zang: Yes, ma'am. No, ma'am. I got hurt on Thursday, and I didn't go to the doctor until Friday. See, I got hurt the first thing Thursday morning.

Ms. Podis: Uh-huh.

Mr. Zang: And then I went - I worked the rest of the day. You know, I - it was just sore. It wasn't hurting.

Ms. Podis: Uh-huh.

Mr. Zang: And then that night, it was hurting bad, so I went to the - I missed work Friday and I went to the doctor on my own. I called and told them. They set me up for the doctor. Workman's comp paid for that. They went through the - they - they listened to what the bridge company had to say and listened to what I had to say, and they said that I had a normal opinion. If I had any more problems, to give them a call.

Ms. Podis: Now, did you know that you were supposed to enter a rehabilitation program and go through that?

Mr. Zang: No. They showed me the paper the morning it all happened. They - they posted it or something, they said, but - I mean, you know. I - it's not that I tried to go against their wishes. I was just going to - I'd still be in a hospital right now, or still not drawing a paycheck anyway. I'm recently married and got kids to support.

Ms. Podis: Is this the policy - the mutual agreement - that you're talking about?

Mr. Zang: Looks like the one they showed me. I went to - I went into the hospital twice during the fifteen day period they give me.

Mr. Zang: They wanted to keep me. First, they said they'd keep me seven days. Then they said my insurance said they could keep me thirty days, so since the insurance would keep me thirty days, they was going to go on and keep me thirty days. It was like a money type deal. And then they was already asking me, before I even got - well, I wasn't even there one whole day and they was asking me how I was going to pay the rest of the bill. There was no way I could afford to do it. Even though the money with the bridge company made. And that I made there. There was no way I could afford it. And I'm still in a hardship now.

Ms. Podis: Uh-huh.

Mr. Zang: And I go to the unemployment office regularly looking for work.

Ms. Podis: Uh-huh. And you're a welder. Is that right?

Mr. Zang: Yes, ma'am. Welder, train operator - I'd do anything the Nashville Bridge Company has to do. My dad's president of the company.

Mr. Zang: And I've been there for years. I've - that's really the only type work I've ever done.

Ms. Podis: Do you think he's going to hire you back, or anything?

Mr. Zang: I don't know. It may be on down the line, he might. But, I mean, for right now, I'm not - I'm not even, you know - I don't know. I have to get through this situation before I look into other ones.

Ms. Podis: Uh-huh. Okay. Anything else?

Mr. Zang: I wish they would. I'd love to go back to work.

Mr. Zang: Well, since I showed up this time, I won't have to show up again, will I? I mean, I'm here and they're not.

Ms. Podis: Yeah. It just depends. Did you talk to them, and they told you weren't - they weren't going to be here?

Mr. Zang: Well, I talked to my dad first and he told me to sign up for the unemployment, which I did. And I told him, well, I'd already done that. And I told him that they appealed it. And he said, well, you just need to go down there and sign up again. So then I called Jim Mission, which his name is on the note you just showed me.

Ms. Podis: Right.

Mr. Zang: I called him, and he said that they had, you know, no intentions of appealing it. That it wasn't up to them.

There is no evidence that the unnamed union" mentioned in the agreement mentioned above was a party to a collective bargaining agreement affecting a group of employees including plaintiff; or that the parties to said agreement agreed that failure to undergo any particular form of treatment after a positive test for drugs off the job was "misconduct connected with claimant's work."

Assuming the unproven fact that the employer and the unnamed labor union had a collective bargaining agreement affecting all employees of the employer the collective bargaining agreement would be binding upon the non-union employees in regard to their working conditions and continued employment as set out in the agreement. 51 C.J.S. Labor Unions Sec. 255 p. 1115 n. 10 citing authorities from Georgia Missouri Minnesota and New Jersey. However this does not mean that a separate agreement in the form quoted above signed by officers of such a union is effective to create a disqualification to receive a benefit conferred by statute unless it can be judicially noticed or there is evidence that the particular act of disqualification conforms to the definition in the statute connected with the claimant's work. In the present case plaintiff's failure to undergo rehabilitation cannot be administratively known and is not shown to be "connected with his work."

If the record contained any evidence of any misconduct of plaintiff connected with his work which might be reasonably related to his use of addictive drugs then a failure to submit to treatment might be deemed to be" connected with this work." No such evidence appears in this record.

The only evidence of use of drugs by plaintiff is the letter from the employer and plaintiff's admission that he "failed a drug test on a day when be was not at work. There is no evidence that the drug detected in the test was an addictive drug requiring any particular period of in patient rehabilitative treatment. So far as this record shows, the drug detected in the test might well have been an analgesic drug taken for the pain for which plaintiff was seeking treatment.

In Cherry v. Suburban Manufacturing Company, Tenn. 1988, 745 S.W.2d 273, cited above, the employee was denied unemployment benefits because he breached an agreement with his employer under which he was given an unpaid leave of absence for the purpose of undergoing rehabilitation for drug abuse. He failed to undergo the treatment and was discharged. The Trial Court affirmed the disallowance of benefits, this Court reversed and allowed benefits, but the Supreme Court reversed this Court, affirmed the Trial Court and administrative agency, and said:

We agree with appellants, therefore, that the sole issue in the case is whether or not the refusal of Appellee to obtain appropriate medical and rehabilitative treatment for his drug abuse problem was misconduct connected with his work" so as to disqualify him for unemployment compensation benefits. . . .

"Unless the employee's wrongdoing violates a duty owed to the employer it cannot amount to that 'misconduct connected with his work' which serves to disqualify him to receive unemployment insurance benefits although it may fully justify the employer in discharging him."

In the present case the employee was a young veteran of military service twenty-three years of age who had a history of drug abuse dating back to his childhood. Early in 1983 he had entered upon a drug rehabilitation program conducted by the Veterans Administration at Memphis but he had withdrawn from it and had not completed the program.

Thereafter up until about November 8 1983 he continued to use drugs and alcohol excessively to the point that he developed severe emotional problems. Early in November he attempted suicide. On or about November 7 or 8 he wrecked his automobile while under the influence of drugs. He was hospitalized for some four days. It was obvious to him and to his mother that he needed professional help. It was also obvious that he could not continue in this employment which was of very short duration and that he would be discharged from it.

Although appellant denied that any absenteeism or other problems which he may have encountered at work were related to his drug abuse he admitted to excessive use of both drugs and alcohol on weekends and off duty to the point that he realized he had developed a very serious problem.

He did not begin work with the employer Suburban Manufacturing Company until late July or early August 1983. He had been working only slightly more than three months when he had the accident above referred to. According to an exhibit filed in the record his last day of work was November 7 1983.

For the next ten days he did not appear for work and apparently was unable to work because of his injuries and drug intoxication. On November 17 1983 he and his mother met with his union steward and the personnel manager. At that time Appellee requested a leave of absence so that he might enter the Veterans Administrative drug rehabilitation program at Memphis. He stated that this program would require about ninety days and the personnel manager agreed that he might have a leave of absence through February 9 1984.

In our opinion the record does not sustain the finding of the Court of Appeals that Appellee's past performance on the job had not been affected by drugs and that the personnel manager was only concerned about his future performance. At the time of the conference on November 17 he had already been [out] of [out] from work for ten days because of his drug problems and by his own admission those problems had reached such a degree of severity that he was no longer able to work because of them.

It is uncontradicted that Appellee did not comply with the terms of the leave of absence which had been granted to him. He did go to Memphis and consult with the Veterans Administrative authorities there. They readmitted him into the drug rehabilitation program on November 23 1983 and he was scheduled to be admitted to the hospital on November 25.

For the reasons of his own however Appellee changed his mind and did not enter the program. Court of Appeals stated that the facts did not clearly show a willful breach of the terms of the leave of absence agreement. We respectfully disagree. They show nothing other than a willful and deliberate breach of the agreement on the part of the Appellee. He claimed to have been justified in not going through the program because of financial hardship since his leave of absence was without pay. Nevertheless he did not enter the program or seek any help for his condition. He did telephone the personnel manager and she advised him that she could not reinstate him at his work unless he did go through the program or at a minimum submit to her copies of his previous records at the Veterans Administration Hospital. This he had agreed in writing to do at the time the leave of absence was granted.

When the records were submitted to the personnel manager and when she ascertained from them the degree and severity of Appellee's drug abuse history she again advised him that she could not permit him to return to work unless he obtained professional medical help. He agreed for the second time to reenter the program at Memphis and returned there in the latter part of January. At that time however according to the records of the Veterans Administration which are in evidence he advised the admitting officer that he did not desire to receive any treatment. In addition he told the Veterans Administration officials that he was not at that time abusing drugs and had not done so since November. Based on all of these circumstances he was denied admission; but as stated there is clearly material and substantial evidence in the record that he told personnel at Memphis that he did not desire to receive any treatment at that time.

Although Appellee contends that he was fully justified in his conduct because he said that he had been able to bring his drug problem under control voluntarily and without professional help his failure to comply with the terms of this agreement with his employer could hardly be characterized as inadvertent or negligent. His actions were willful and deliberate and in our opinion do not represent a reasonable effort on his part to obtain needed medical treatment. In our opinion there was material and substantial evidence to justify the conclusions of the administrative agency and of the Chancellor that the Appellee had indeed been guilty of misconduct connected with his work within the meaning of the applicable statute.

A case somewhat similar was Leslin v. County of Hennepin 347 N.W.2d 277 (Minn. 1984). There two employees had chemical dependency problems which adversely affected their job performances. Their respective employers had made considerable efforts to work with them with respect to treatment and Counseling but both employees were eventually discharged when their performances failed to improve because of their continuing chemical dependency. Both were held to be disqualified under a Minnesota statute requiring disqualification for misconduct which interfered with or adversely affected the employment.

The terms and conditions of the collective bargaining agreement between the employer and the union to which Appellee belonged are not in the record. We therefore cannot determine whether its provisions might have prevented the employer from terminating Appellee in November 1983 but it does clearly appear that at that time he could no longer continue with his work because of his drug dependency. He so admitted and solemnly agreed that he would seek professional help to obtain relief [His] decision not to do so cannot be characterized as anything but deliberate and willful. Under the circumstances in our opinion his actions not only justified the employer in terminating him but also violated a duty to and an agreement made with his employer.

It has previously been held in this state that excessive absenteeism constitutes a basis for disqualification even though caused by alcoholism. See Miotke v. Kelley 713 S.W.2d 910 (Tenn. App. 1986). After having already been off from work for ten days Appellee was allowed a ninety-day leave of absence conditioned upon his completing the drug therapy program. He made no effort to complete that program after having been accepted into it on November 23. There is evidence in the record that the employer was prepared to extend his leave of absence for any reasonable period sufficient to enable him to complete the program. When he conferred with his personnel manager on January 24 1984 after the Veteran's Administration records had been furnished the employer Appellee was again told that he could have whatever reasonable leave of absence he might need to re-enter the program and to complete it. While he did testify that he attempted to re-enter it at that time and was denied as previously stated there is evidence in the record that he told the admitting personnel that he did not wish to receive the treatment.

While a trier of fact might have reached a different conclusion we cannot say that the record in this case is so devoid of material and substantial evidence as to justify the reversal of the decision of the administrative agency. The Chancellor so held and we reinstate his decision.

The present case is distinguishable from Cherry v. Suburban in that there is no evidence that plaintiff's job performance was in any way unsatisfactory or that he had ever experienced any ill effects from taking drugs or (except for "failing a test") that he ever took any prohibited or controlled drugs. There is no evidence that plaintiff requested and obtained a leave of absence for drug rehabilitation. His only request was for treatment for pain. Also it is noteworthy that his statement that he did not use drugs and was refused a re-test stands uncontradicted even after a specific request to the employer.

No other published Tennessee authority is found on the subject under discussion.

In National Gypsum Co. v. State Employment Security Kan. 1989 244 Kan. 678 772 P.2d 786 the employee was discharged for failure to pass a drug screen test. The employer insisted that such failure amounted to willful and intentional action which is substantially adverse to the employer's interests, as required by the Kansas Unemployment Compensation Law for disqualification. The employer had a written substance abuse policy providing for tests for "drugs alcohol narcotics marijuana and other illegal or controlled substances." After the employer suffered his second on-the-job accident requiring four months absence from work he tested positive for marijuana. Upon his return to work his drug screen was negative.

The Kansas statute stated:

An individual shall be disqualified for benefits:

(b) If the individual has been discharged for misconduct connected with the individual's work. . . .

(1) For the purposes of this subsection (b) 'misconduct' is defined as a violation of a duty or obligation reasonably owed the employer as a condition of employment. In order to sustain a finding that such a duty or obligation has been violated the facts must show: (A) Willful and intentional action which is substantially adverse to the employer's interests or (B) carelessness or negligence of such degree or recurrence as to show wrongful intent or evil design. The term 'gross misconduct' as used in this subsection (b) shall be construed to mean conduct evincing extreme willful or wanton misconduct as defined by this subsection (b).

National Gypsum 772 P.2d at 789.

The Kansas Supreme Court concluded:

An employee's conduct off the working premises and outside the course or scope of his employment is generally not considered misconduct in connection with employment. There are circumstances where the conduct is so closely connected with the business interests of the employer as to warrant disqualification for unemployment benefits. The provisions of an unemployment compensation statute relating to the disqualification to receive unemployment compensation benefits in the case of a discharge for misconduct are intended to deny unemployment compensation to a claimant who is discharged because of misconduct regardless of when or where it occurred so long as such misconduct is in law connected with the employee's work. There is no merit to the argument that an act of misconduct relating to the private life of an employee is connected with his employment. The fundamental issue is whether the misconduct adversely affected the employee's ability and capacity to perform his duties.

An employer's rule governing the off-duty conduct of his employees must have a reasonable relationship to the employer's interests before a violation thereof will constitute misconduct barring eligibility for unemployment compensation benefits. The question of the reasonableness of such a rule is to be treated by the rule's relationship to the business interests of the employer.

Under K.S.A. 1988 Supp. 44-706(b)(1) off-duty drug use cannot be construed as a "willful or intentional failure to perform duties in a satisfactory manner." To exclude a discharged employee from unemployment benefits for off-the-job misconduct the off-duty misconduct must be work connected and reasonably related to the employer's business. In the absence of evidence that an employee's drug usage had actual on-the-job impact an employee's dismissal for failing a urine drug test based on off-the-job drug usage does not disqualify the employee from receiving unemployment compensation benefits.

National Gypsum 772 P.2d pp. 792-93.

In Glide Lumber Products Co. v. Employment Division Or. App. 1987 86 Ore. App. 669 741 P.2d 907 the employee tested positive for marijuana in a random drug test. The employees' handbook stated that "detection of the presence of controlled substances as defined by law (excluding prescriptions) is grounds for discharge." There was evidence that marijuana can impair functions for twelve hours after use but may be detected by a test thirty days thereafter. The Oregon statute disqualifies for benefits for "misconduct connected with work" or "an act that amounts to willful disregard of an employer's interest." The Oregon Court affirmed the award of benefits and said:

In this case whether viewed from the perspective of the relation of the rules to employer's business or the connection of the misconduct to claimant's work the question is whether off-the-job drug use can be disqualifying only if it does in fact or is reasonably likely in a specific case to have actual on-the-job effects. The argument for an affirmative answer is that an activity which has no impact on an employee's work is almost by definition not work-connected. Moreover the drug test which claimant failed and which precipitated his discharge is incapable of determining whether the marijuana use it detects can have any on-the-job effects. It can come no closer than a 29-day range of identifying when the marijuana was pharmacologically active in any way which could bear on performance or safety.

The best argument for the opposite answer is that to assure safety and competence in the workplace all illegal drug use must be proscribed because there is no way of knowing before the fact whether a particular drug episode will or will [footnote omitted] not have on-the-job manifestations. Employer asserts that while no test will measure the degree of impairment or the precise time the drug was used, [it] employed the best available test. Paradoxically the very imprecision of the test which militates against treating the drug use it detects as disqualifying also lends support to the contrary conclusion: Because the drug can affect safety and performance for a period of time after its ingestion and there is no way of knowing when it was taken the only guarantee that an employee will not work while he is under the effects of marijuana is if he never uses it.

Neither answer is completely satisfying but we nevertheless must give one. We conclude that the better of the two is that claimant's misconduct was not connected with his work under these circumstances. His drug use had no actual impact in the workplace. The speculation that marijuana use potentially may have on-the-job effects which cannot be detected by the drug test does not seem to us to be a persuasive reason for regarding claimant's use of the drug as work-connected. . . .

Glide Lumber 741 P.2d at 910.

An administrative decision may be reversed by Court if unsupported by substantial and material evidence. T.C.A. SEC. 50-7-304(i)(2). Metropolitan Government etc. v. Shacklett Tenn. 1977 554 S.W.2d 601.

The record does not contain substantial and material evidence that plaintiff was guilty of "misconduct connected with claimant's work." Therefore the administrative decision denying benefits is unsupported by substantial and material evidence.

The judgment of the Trial Court and the decision of the agency are reversed and vacated. All costs including costs of this appeal are assessed against the defendant. The cause is remanded to the Trial Court for entry of judgment in conformity herewith and for further remand to the agency for similar purposes.

Reversed Vacated and Remanded.