Board Defines Rule on Drug Test for Workers

A worker is not entitled to unemployment insurance if fired from a dangerous job for refusing to take a drug test ordered by an employer who had reasonable suspicion that it might be positive, the state Unemployment Insurance Appeals Board ruled Friday.

In a 4-2 decision, the board overruled an administrative law judge and refused jobless benefits for Vernon Ables, a drop-hammer operator who was fired by the Shultz Steel Co. of Southgate.

Dissenters on the board agreed that a drug test may be compelled upon reasonable suspicion when the employee is involved in a dangerous job, but contended that in this case the reasonable suspicion had not been established.

Refused to Take Test

Ables, who now lives in Gorman, Tex., was fired Dec. 20, 1985, for refusal to submit to a urinalysis.

The security manager said that Ables’ eyes were glazed, the pupils dilated and the whites slightly red, and that his speech was slightly slurred when he reported for work on Dec. 17. The security manager looked at him because Ables had broken open his personal locker when he arrived, explaining that he had forgotten his key.

The urinalysis was ordered by the personnel manager even though Ables’ immediate supervisor said Ables was in good working condition and was his best drop-hammer operator. The security manager said Ables was verbally abusive and made obscene and profane comments.

Ables returned to work on Dec. 19 and again refused to take the test. He also came back the next day, again refused to take the test, and was fired. Later that day, he returned in what the employer regarded as an intoxicated condition and volunteered to take the test. He was informed that he had been fired and the opportunity to take the test was past.

Fired for Misconduct

The board majority found Ables’ refusal to take the urinalysis unreasonable and insubordinate. It decided that he was fired for misconduct, which had been defined in a prior board decision as “willful, substantial breach of a material duty owed the employer which tends to damage the employer’s interest.”

The dissenters cited Ables’ immediate supervisor’s favorable opinion of Ables’ condition and abilities. They noted that the administrative law judge who first heard the case had found Ables’ testimony credible and that he had observed the witnesses, which the appeals board had not.

The dissenters noted that when Ables finally agreed to take the test, the deadline had not expired, and that under the employer’s rules if he took the test he would not have been discharged, whether the test proved positive or negative.