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Interpreting a 2002 amendment to the Unemployment Compensation Law, the Commonwealth Court in Pennsylvania has ruled that drug test results whose chain of custody is challenged after they have been admitted into evidence should still be given probative value by the fact finder. In reversing the Unemployment Compensation Board of Review’s decision in UGI Utilities Inc. v. Unemployment Compensation Board of Review, the three-judge panel ruled on Monday that the board had erred in concluding that there is no difference between � 402(e) of the law, which does not address drug tests, and � 402(e.1), which does. “We do not agree that the enactment of Section 402(e.1) of the law [in December 2002] was intended to work a sea change in the rules of evidence for determining ineligibility for benefits where a claimant has abused drugs,” Judge Mary Hannah Leavitt wrote. “Absent confession, in which case there should be no contest, there is no way to prove drug use except by a drug test result.” Leavitt was joined by Senior Judge Joseph F. McCloskey. President Judge James Gardner Colins dissented without filing his own opinion. According to the opinion, claimant Charlyse Nelson began working as an operations representative at UGI in March 2001. UGI is a natural gas and electric utility based in Reading, Pa., according to the company’s Web site. UGI employees were required to comply with a random drug testing system modeled after the U.S. Department of Transportation’s standards, the opinion states. UGI’s substance abuse policy was made known to workers through the company employee handbook. In November 2002, Nelson took a drug test and tested positive for cocaine use, according to the opinion. After undergoing a rehabilitation program through UGI, she signed a “last chance agreement,” which required her to be tested twice a month for three months. In late December 2002, the opinion states, Nelson again tested positive for cocaine. She denied that she had used cocaine but declined to have her sample retested. UGI fired Nelson for violating its substance abuse policy, and Nelson applied for unemployment compensation. The Office of Employment Security denied her application, according to the opinion, citing the results of the failed drug tests. But after a hearing before a referee, the office’s ruling was reversed. The referee concluded that the information provided by UGI concerning the drug test records’ chain of custody was hearsay. The board affirmed that decision. The opinion reviews the language of � 402(e.1), enacted only a few weeks before Nelson’s second failed drug test. Section 402(e.1) states that an employee is ineligible for compensation when his or her unemployment was the result of failure of a drug test administered in conjunction with the employer’s substance abuse policy. In contrast, the opinion states, � 402(e) mentions only “willful misconduct” as a basis for an employee’s ineligibility for compensation. The judges found that the board had incorrectly applied � 402(e) in the case. “It must be that the Legislature meant to effect some change in the law when it enacted Section 402(e.1),” Leavitt wrote. “The board’s argument would render Section 402(e.1) mere surplusage; we are charged, however, to give effect to all the language in a statute.” Next, the panel addressed the board’s review of UGI’s evidence. The opinion notes that DOT regulations require that drug tests be performed by a laboratory certified by the federal government and be reviewed by a medical review officer (MRO), an independent, licensed physician. The board in UGI acknowledged the “impressive amount of documentation concerning the chain of custody of claimant’s sample,” the opinion states, but still found that no witnesses testified to the procedures used to obtain the sample. Leavitt called attention to the fact that in past Commonwealth Court opinions on unemployment compensation cases involving lab reports, such reports had not been considered hearsay, but rather, medical fact. “We agree with the board that employer should have introduced the drug test results and chain of custody documentation through the testimony of … employer’s MRO,” Leavitt wrote. “However, once those documents were admitted through the testimony of employer’s health and safety officer … without objection from claimant, it was too late for either claimant or the board to object to their probative value.” The judges noted that neither Nelson, the referee nor the board had asserted a gap in the chain of custody. “There is no ‘weight’ that can be given irrelevant evidence,” Leavitt wrote, adding later, “Under the guise of assigning appropriate weight to admitted evidence, the fact finder cannot reverse himself on a decision to admit evidence.” The judges advised that administrative hearing parties can address admissibility of a lab report during preconference hearings. “In any hearing, whether judicial or administrative,” Leavitt wrote, “the focus of the fact finder should be on the merits of a proffered report, i.e., whether the test results are scientifically sound and, therefore, reliable as opposed to whether the report on drug test results was the actual one issued by the lab and the sample tested was the relevant one.” The majority concluded that UGI had properly laid the foundation for a drug test report. “Although irregular,” Leavitt wrote, “once admitted, employer’s lab reports of claimant’s positive drug tests were entitled to be given probative value.” UGI’s attorneys were Andrew Levy and Adam Long of McNees Wallace & Nurick in Harrisburg. Long said that in preparing for the case, he did not find any opinions that deal with � 402(e.1). “This decision clarifies how exactly employers can prove that a claimant failed a drug test in unemployment compensation cases,” Long said. The board was represented by Pennsylvania Department of Labor & Industry attorneys Judith Gilroy, assistant counsel, and Clifford Blaze, deputy chief counsel. The department’s press office did not immediately respond to a request for comment.

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