Good to be back. After a stint at mediation school which afforded some time to bask in the glow of colleague Mike Silverman's affable presence and sparkling wit, followed by a whirlwind college tour geared toward the objective of insuring that daughter #2, sweet Caroline, becomes part of the great "Gator Nation", I have now caught up enough to focus on what is really important.....my blog.
This is the first of two cases I will be reporting on that deal with Section 2353 forfeiture. Maurice Warren v. Allen Family Foods, IAB #1326963 (9/29/10) (ORDER) addresses the issue of whether failing a urine drug screen necessary to allow a return to work in a modified duty job assignment is the equivalent of a "refusal" to accept employment tendered by the employer as that concept is articulated at 19 Del. Code Section 2353(c).
The claimant in this case was an occasional marijuana user who had been out on total disability before being notified of the opportunity to return back to work with his former employer. He presented to the workplace on short notice and submitted willingly to a drug screen. Of note, claimant had been terminated by this employer a year earlier and had little expectation of returning to the company, which had a zero tolerance as to drug use.
Claimant failed the drug screen, which was positive for marijuana. As such, when claimant presented at the plant thereafter for orientation he was advised he was not eligible for re-hire. In addition, the employer's position was that claimant forfeited any entitlement to total disability pursuant to 19 Del. Code Section 2353(c), arguing that the use of marijuana was in violation of the employer's well-known zero tolerance policy as to drug use and constituted a refusal to accept a job which would have otherwise been available to claimant.
This Order, authored by Angela Fowler on behalf of the Board, is a concise discussion of how "refusal" is defined in the 2010 Merriam-Webster Dictionary, one which concludes that the claimant's act of failing the urine drug screen was not one which was "intentional, willful, or based on an intention or mental determination not to comply with the request or offer at hand." Pivotal to the deliberations here was the fact that the request to submit to the urine screen came on very short notice and the fact that claimant had no basis to believe he would be invited to return to this employer, in which case he might have at least had the choice to modify his own behavior to allow him to pass the drug screen and alter his lifestyle choices.
A quirky little case and while I am not sure how often these facts might crop up, I am thinking this is an issue of first impression. Craig Eliassen represented the claimant in this matter and John Ellis advanced the arguments for Allen Family Foods. I wonder if a different outcome would have obtained if the claimant had plenty of time to "abstain" before the drug test? What if Allen were to repeat the offer here?
There is language in the ruling to suggest another bite of the apple....or perhaps another drag on the bong, might be available to the employer here if they wanted to be tenacious on this issue......:>)
Look for another forfeiture case under 2353(b) coming next......
It sure is good to be back.......:>)
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Asserting this is a refusal is an argument much like the one advanced in recent years by carriers that failing to follow a safety rule of the employer is the same as refusing to use a safety appliance provided by the employer. Ignoring the plain meaning of the words of the statute in order to use an extraordinary remedy as some sort of a broadly available and flexible ordinary defense is utterly at odds with the nature and purpose of the statute. Not to mention that ignoring the plain meaning of the words to effect a result entirely alien to the entire statutory scheme is at best lunacy and at worst bad faith. Obviously I am not one who can argue (with even my best poker face) that novel interpretations of the provisions of the act are not allowed, but they do have to be consistent with the plain meaning of the words of the statute or explain how a different meaning can be applied consistent with the purposes of the act. Even then, the alternative meaning has to at least be plausible. ----Henry.