Is an employee entitled to receive unemployment insurance benefits after being terminated for admittedly smoking marijuana while on vacation? According to a recent, and counter-intuitive, decision by the Illinois Appellate Court, admitted off-duty drug use does not bar unemployment insurance benefits where the employer's policy only prohibited employees from using or being under the influence of a controlled substance while "in the course of employment."
In Eastham v. Housing Authority of Jefferson County, 2014 IL App (5th) 130209, ¶10, the Illinois Appellate Court held that a terminated employee was entitled to unemployment insurance benefits where his admitted off-duty marijuana use was not "in the course of employment," and therefore, did not violate the employer's drug policy or constitute "misconduct" under the Illinois Unemployment Insurance Act.
Employee's Admitted Drug Use and Drug Test
Plaintiff William Eastham was a maintenance worker for the Housing Authority of Jefferson County. A few weeks after returning to work from vacation, Eastham was subjected to a random drug test. After taking the drug test, Eastham confessed to his supervisor that he had smoked marijuana during his recent vacation and did not believe he would pass the drug test. As a result of his admission, Eastham was terminated for violating the Housing Authority's drug-free workplace policy. Eastham's prediction ultimately proved incorrect, as the results of the drug test came back negative.
Eastham sought unemployment insurance benefits following his termination, which the Department of Employment Security denied on the grounds that Eastham's "choice to use the drug represents willful misconduct." Id. at ¶5. In an appeal to the Illinois Circuit Court of Jefferson County, the trial court disagreed and granted Eastham unemployment insurance benefits on the basis that the employer's policy only prohibited possession, use or being under the influence of alcohol or drugs "while in the course of employment." Id. at ¶7. It did not prohibit such conduct outside of work.
Appellate Court Ruling
At issue in the appeal to the Illinois Appellate Court was whether Eastham's use of marijuana outside of work amounted to "misconduct" within the meaning of the Illinois Unemployment Insurance Act — thereby disqualifying him for benefits. More specifically, the Court addressed the parties' conflicting interpretations of the phrase "in the course of employment," contained in the Housing Authority's drug-free workplace policy.
The Court rejected the employer's argument that the policy should be interpreted to prohibit the use of illicit substances at any time during an employee's tenure and to permit the termination of an employee who admits to using marijuana even if the employee passes a drug test. Id. at ¶19. The Court explained, barrowing from Illinois workers' compensation law, that the phrase "in the course of employment" means: "(1) at a place where the employee is reasonably expected to fulfill [his] duties, and (2) while [he] is performing those duties." Id. at ¶15.
In granting Eastham unemployment insurance benefits, the Court was persuaded by the fact that the negative drug test established that Eastham was not under the influence of drugs at the time he reported to work. There may have been a different outcome had Eastham been drug tested immediately upon his return from vacation. But that was not the circumstance here.
Finally, the Court commented on the need for the employer's drug-free workplace policy to be reasonable, i.e., there must be a sufficient connection between the prohibited behavior and the workplace to make the policy work-related. The Court explained that even if the Housing Authority's policy had expressly prohibited the use of controlled substances outside of work, the policy likely would not have been reasonable and sufficiently connected to the workplace and Eastham's role as a maintenance employee.
Lessons for Employers
Employers are advised to review their workplace policies to ensure that any restrictions on off-duty activities bear a sufficient connection to the employer's workplace and employee duties and responsibilities. In addition, employers should note the following implications of this recent decision:
- The Illinois Appellate Court was not questioning whether the employer was justified in terminating the employee for his admitted marijuana use — even absent a positive drug test, but rather, "only whether this conduct amounts to ‘misconduct' that will disqualify him from receiving unemployment insurance benefits." Id. at ¶28.
- As more states legalize the medical, and even recreational, use of marijuana, there likely will be an increased focus by agencies and courts on the interaction between employer drug-free workplace policies and employee use of marijuana outside of the workplace.
- Employer policies governing off-duty conduct are more likely to be found reasonable if they involve safety-sensitive positions. The Court contrasted this case from those situations involving safety-sensitive positions (e.g., a city bus driver), where there is a strong nexus between a rule prohibiting certain off-duty conduct and the employee's duties in the workplace. Id. at ¶23.
- Finally, employers are reminded to ensure that their workplace drug policies are applied and enforced in a uniform and non-discriminatory manner. Even a facially reasonable policy may be subject to scrutiny if it is applied in a discriminatory or inconsistent manner.
If you have questions about drug and alcohol-free workplace policies, please contact any Faegre Baker Daniels labor and employment attorney.