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A nurse’s aide’s regular at-home use of marijuana and prescription pain killers was enough to constitute willful misconduct, Pennsylvania’s Commonwealth Court has ruled, even though she claimed she never came to work while under the influence of the drugs. Therefore, the three-judge panel ruled in Burger v. Unemployment Compensation Board of Review that claimant Diana Burger was not entitled to unemployment compensation benefits. “The court agrees that these admissions gave rise to a perfectly legitimate concern on employer’s part that Burger might well attempt to work in a sufficiently impaired condition to create safety problems,” Commonwealth Court Judge Doris Smith wrote for the court. Burger worked as a nurse’s aide for Garvey Manor from March 24, 1994, until Nov. 9, 1999. On that November date, Burger was called into a meeting with Joann Kasun, Garvey’s director of human services, and Mary Ann Sirko, the director of nursing services. Burger was terminated after the meeting. Garvey had received a bill from Burger’s physician in connection with his treatment of a work-related injury Burger had sustained. Attached to the bill was Burger’s medical history, which included admissions by Burger that she used marijuana daily and used prescription drugs illegally. Kasun and Sirko confronted Burger about her drug use. Kasun testified that Burger said she did use marijuana on a daily basis and that she used her daughter’s pain prescriptions. But Burger allegedly said she did not purchase prescription drugs off the street, as the report indicated. Garvey’s employee handbook contained a partial list of behavior the company found unacceptable, Smith said, including reporting to work under the influence of alcohol or illegal drugs. “Kasun testified that Burger, as a certified nurse’s aide, was in constant contact with residents and that she was terminated because [Garvey] could not be sure that she would be able to care safely for residents,” Smith said. “Burger testified that she did use marijuana on a daily basis, in the evening, but that she never reported to work directly after using marijuana.” An unemployment compensation referee denied Burger’s application for benefits finding that her behavior constituted willful misconduct. Although Burger’s drug use did not affect her job performance and therefore did not fall under Garvey’s policy, the referee said, Burger’s behavior was such that an employer should not have to accept from an employee. The Unemployment Compensation Board of Review affirmed. On appeal, Burger cited the 1978 Commonwealth Court case Gallagher v. UCBR. The Gallagher court said an employer may require its employees to be “exemplary citizens” off the job, but that “acting in a manner meriting the employer’s disapproval does not disqualify an employee from receiving unemployment compensation upon his discharge unless his dereliction is connected with his work.” And in Webb v. UCBR, a 1996 Commonwealth Court decision, the court required willful misconduct to be connected to the employee’s work. In Webb, the court said a claimant’s off-the-job arrest for drunken driving was not willful misconduct in a situation in which the employer had a rule that its employees were not to use alcohol within five years of rehabilitation. The court said the employer’s rule was unreasonable. Garvey responded that because of her drug use, Burger could have harmed patients and therefore subjected Garvey to potential liability. Garvey said the Commonwealth Court’s 1997 decision in Derry v. UCBR should control the outcome of the case. The Derry court affirmed the denial of benefits to a claimant who worked with troubled adolescents and violated a known policy against drug use, even while not at work. The Derry court concluded the drug use undermined the claimant’s position as a role model and could potentially decrease public confidence in the employer’s program. Smith said the court agreed with Garvey that Burger’s conduct constituted willful misconduct connected with her work. “First, Burger admitted to using marijuana at home in the evening every day, and she agreed that she should not be working when she was under its influence — she denied ever reporting to work in such a condition,” Smith said. “In addition, she admitted to having a problem in regard to using painkillers that were not prescribed for her, for which she thought [Garvey] should have given her rehabilitation rather than termination. Smith noted that in the 1993 case Gillins v. UCBR, the state supreme court created a two-part test to be used when analyzing cases which involved criminal activity outside of the workplace. In such an instance an employer must prove that the employee’s conduct leading to the arrest was inconsistent with acceptable standards of behavior and that the conduct directly reflects on the employee’s ability to perform assigned duties. Smith said both criteria were met in Burger’s case. “In the present case, although there was no arrest, Burger’s admitted conduct is inconsistent with acceptable standards of behavior,” Smith said. “The daily use of illegal drugs involved here, unlike some other forms of criminal activity, does reflect directly upon Burger’s ability to perform her duties.”

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