Jobless Benefits Entangled in Drug Test Issue : Labor: The denial of claims by workers fired for flunking or refusing to take tests divides unemployment board.

Should a worker fired for failing or refusing to take a drug test be denied state unemployment benefits if there was no on-the-job drug use? Suppose the worker only took drugs while away from work? Suppose there was no evidence of impairment?

These questions, which have important legal consequences, have divided the state Unemployment Insurance Appeals Board twice in the past 14 months.

In rulings it said were intended to set a precedent, the board voted 5 to 2 to deny unemployment benefits to a Ventura oil platform housekeeper who refused to be tested for drugs and a Fontana janitor whose test results indicated drug use.

Attorneys familiar with the board’s split decisions say they are a result of the lack of a legal consensus in California on the right of an employer to administer drug tests to his work force.

There was no evidence in either case that the employees’ work had been affected by drug use.

Both workers were initially granted unemployment benefits by administrative law judges. The unemployment appeals board reversed the rulings.

In response, the AFL-CIO’s general counsel in Washington last week filed Superior Court motions asking that the appeals board rulings be reversed.

Michael Rubin, a San Francisco attorney representing the AFL-CIO, said California is applying improperly restrictive standards when it determines unemployment benefit eligibility.

“What you do on your own time is what you do on your own time, as long as it has no impact on your job,” Rubin said.

Each state sets its own standards for awarding unemployment benefits. Usually, benefits are denied to employees who were fired for engaging in “willful misconduct.”

Employers, their attorneys and courts in many states have included the flunking of a drug test or the refusal to take a test as insubordinate acts equal to willful misconduct, according to Jonathan Segal, a Philadelphia management attorney who specializes in drug testing cases.

In California, whose Constitution has strong “right to privacy” protections, the standard is less clear.

Last year, the state Court of Appeal held that random drug testing of employees could, in some cases, constitute a violation of privacy, exposing an employer to substantial financial liability.

As a result, if a fired employee can demonstrate that his employer’s requirement for drug testing violated his privacy right, he may be able to make a compelling legal argument for unemployment benefits--even in cases in which he cannot overturn the firing itself.

Worker-rights advocates believe California’s right to privacy provision generally protects the worker who takes drugs at home but shows no signs of impairment at work. Even if the worker is fired for drug use, the employee should still be eligible for unemployment benefits because his personal drug use did not constitute willful misconduct, these advocates say.

The trouble is, neither the Court of Appeal nor state Supreme Court has settled the question of what kind of testing employers may lawfully do.

Despite the fact that a growing number of employers have introduced mandatory drug testing since the mid-1980s, there is no court guidance in California on what kind of drug testing does not violate the right to privacy. So far, only drug testing for job applicants has been upheld.

“We don’t have a ruling yet in California saying what is permissible for current employees of a company,” said Brad Kampas, a San Francisco management attorney who specializes in drug testing.

Different rules apply at the federal level. Federal government employees, or employees of private companies that are heavily regulated by the federal government, may be required to undergo drug testing, according to a 1989 U.S. Supreme Court decision.

The ongoing difference of opinion in California was illustrated in September when the unemployment appeals board ruled that David Hayes, a housekeeper for a catering firm that served living quarters for oil rig workers off Ventura, was not entitled to jobless benefits after he was fired for refusing to take a drug test.

By refusing “a reasonable requirement of the employer . . . the claimant was insubordinate and therefore we conclude that the resulting discharge was for misconduct,” wrote appeals board Chairman Robert L. Harvey and four other members.

Board members Loretta A. Walker and Debra A. Berg said Hayes worked in a job category that did not warrant drug testing.

In guaranteeing the right of privacy, California’s Constitution requires employers to demonstrate that there is a “compelling interest” in testing an employee for drug use, Walker and Berg wrote.

“We can find no indication of job impairment anywhere in the record, nor does it appear that the employer had a reasonable suspicion . . . that the claimant was job-impaired. We see no compelling interest justifying the employer’s intrusion into the claimant’s privacy,” the dissenters said.