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Discharge following a positive test for unlawful drugs is disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Discharge following a positive test for unlawful drugs is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Shugg v Commissioner of Labor, 2009 NY Slip Op 03990, decided on May 21, 2009, Appellate Division, Third Department

Following his discharge by his employer tested positive for cocaine following an injury at work, the Unemployment Insurance Appeal Board ruled that Shugg had engaged in disqualifying misconduct for the purposes of unemployment insurance and dismissed his claim for benefits.

Citing Matter of Young, 28 AD3d 989, the Appellate Division said that "An employee's use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct" in such situations.

Shugg admittedly used cocaine a few days before his positive test result and was aware of the employer's policy concerning the use of drugs. While Shugg contended that his dismissal violated the Human Rights Law, the court pointed out that "[a]lthough alcohol dependency qualifies as a disability under the Human Rights Law, drug abuse does not."

The Appellate Division also rejected Shugg?s argument that his employer failed to offer him a "last chance agreement," as he claimed it did with respect to two other employees, holding that there was no showing that either of those individuals received last chance agreements after failing a drug test.

Finding that substantial evidence supported the Appeal Board?s decision, the Appellate Division dismissed Shugg?s appeal.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03990.htm

Full post as published by New York Public Personnel Law on May 22, 2009 (boomark / email).