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Bibolet v. Employment Department

Court of Appeals of Oregon

November 1, 2017

Eric BIBOLET, Petitioner,
v.
EMPLOYMENT DEPARTMENT and Comcast Cable Holding, LLC, Respondents.

          Argued and submitted April 13, 2015

         Employment Appeals Board 13AB0820

          Michael E. Rose argued the cause and fled the brief for petitioner.

          Erin K. Galli, Assistant Attorney General, argued the cause for respondent Employment Department. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          No appearance for respondent Comcast Cable Holding, LLC.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge. [*]

         [288 Or. 490] Case Summary:

After claimant was involved in a motor-vehicle accident at work, claimant's employer required him to submit to a drug test in accordance with employer's written drug policy for its employees. The test revealed that claimant had marijuana metabolites in his body in a concentration greater than allowed under employer's policy, leading employer to terminate claimant's employment with it. Claimant sought unemployment compensation benefits, which the Employment Department denied on the ground that claimant's failure on employer's drug test was a "disqualifying act" for purposes of determining claimant's eligibility for unemployment benefits. The Employment Appeals Board (EAB) ultimately affirmed the department's denial. Claimant seeks judicial review of EAB's order, raising three assignments of error that, in various ways, challenge the employer's drug-testing policy as not meeting the legal requirements that would make claimant's failed drug test a disqualifying act for purposes of his eligibility to receive unemployment benefits.
Held: Claimant's first and third assignments of error were not preserved, and the procedural posture of the case did not excuse him of the requirement to preserve those assignments. The Court of Appeals did not engage in plain-error review of those assignments because the legal points were not obvious. As to claimant's second assignment of error, the EAB did not err in concluding that claimant's failed drug test was a "disqualifying act." The drug test administered to claimant under employer's drug-testing policy was a "blanket test" under OAR 471-030-0125(5)(c) because the policy specified the class of employees who were subject to the test, viz., employees who have had a work-related motor-vehicle accident, and it applied to all employees who meet that criterion.

         Affirmed.

         [288 Or. 491] ARMSTRONG, P. J.

         After claimant was involved in a motor-vehicle accident at work, claimant's employer required him to submit to a drug test in accordance with employer's written drug policy for its employees. The test revealed that claimant had marijuana metabolites in his body in a concentration greater than allowed under employer's policy, leading employer to terminate claimant's employment with it. Claimant sought unemployment compensation benefits, which the Employment Department denied on the ground that claimant's failure on employer's drug test was a "disqualifying act" for purposes of determining claimant's eligibility for unemployment benefits. See ORS 657.176(2)(h), (9)(a)(F). The Employment Appeals Board (EAB) ultimately affirmed the department's denial. Claimant seeks judicial review of EAB's order, raising three assignments of error that, in various ways, challenge the employer's drug-testing policy as not meeting the legal requirements that would make claimant's failed drug test a disqualifying act for purposes of claimant's eligibility to receive unemployment benefits.

         First, claimant contends that employer's drug policy was unreasonable because it regulated off-duty conduct. Second, he contends that employer's policy of drug testing all employees who were involved in work-related motor-vehicle accidents does not qualify as a "blanket" test under the state administrative rules that govern employer drug policies. See OAR 471-030-0125(3)(d) (a drug policy that includes drug testing must either require probable cause before testing or provide for "random, blanket, or periodic testing"). Finally, claimant contends that, because there was no evidence that he was impaired at work as a result of his ingestion of marijuana, the EAB erred in concluding that his failed drug test had occurred "in connection with employment, " as contemplated by ORS 657.176(9)(a)(F). The department responds that claimant's first and third assignments of error are not preserved and are not subject to review as plain error. As to the second assignment, the department contends that a drug test administered to every employee involved in a work-related motor-vehicle accident qualifies as a "blanket" drug test. We agree with the department on each point. Accordingly, we affirm the EAB's order.

         [288 Or. 492] Before we turn to the facts, we briefly outline the applicable statutory and regulatory framework. An individual becomes temporarily ineligible for unemployment benefits if the worker commits a disqualifying act. See ORS 657.176(2). Conduct that causes an employee to "test[] positive for alcohol, cannabis or an unlawful drug in connection with employment" can constitute a disqualifying act.[1]ORS 657.176(2)(h), (9)(a)(F). Such a test, according to the department's rules, must be administered in accordance with a reasonable written policy. OAR 471-030-0125(2)(e) provides:

"For purposes of ORS 657.176(9)(a)(F), an individual 'tests positive' for alcohol or an unlawful drug when the test is administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, and at the time of the test:
"(A) The amount of drugs or alcohol determined to be present in the individual's system equals or exceeds the amount prescribed by such policy or agreement; or
"(B) The individual has any detectable level of drugs or alcohol present in the individual's system if the policy or agreement does not specify a cut off level."

         (Emphasis added.) The rule further sets out four requirements for a written policy to ...


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