Weller v. Arizona Department of Economic Security

626, (1991), peals 812 P.2d reason for this and reinstate sentence imposed in rule, doctrine is the superior clear—“without court.

system won’t work.” Fundamental error has been described as error that is “clear” FELDMAN, C.J., MOELLER, Y.C.J., and “egregious,” id., error that the trial ZLAKET, JJ., CORCORAN and concur. court recognize initiative, should on its own Gilreath,

State v. Ariz. 385, (1971), denied, P.2d cert. 406 U.S. 921, 1781, (1972), 92 S.Ct. 32 L.Ed.2d 121 magnitude

and error of such it de trial, prives the defendant of a fair State v. Hunter, 90, 88, 980, 142 Ariz. 688 P.2d (1984). prior Use of felony non-Arizona 860 P.2d 487 conviction to enhance defendant’s sen WELLER, Appellant, Fred E. tence is not this error. kind of This conclu v. compelling sion is even more aggra vation context. ARIZONA DEPARTMENT OF ECONOM- SECURITY, Agency, IC and Blue factors, Aggravating unlike enhance- Inc., Atlantic, Appellees. factors, range do not increase the sentence to subject; which a defendant is No. 1 CA-UB 91-026. they judge determining used Arizona, Court of the propriety of a sentence within the allot- 1, Department Division B. range. ted They proven not be need state, and the court not limited to formal 11, 1993. Feb. “evidence” but consider reliable Review Nov. Denied 1993.* information made available to it. See 13-702(C); 26.7(b), Rule A.R.S. Ariz.

R.Crim.P.; Jones, 147 Ariz. State v. 710 P.2d Under these circumstances, a defendant has an obli-

gation supplement to correct or informa- tion that has been made available

court that the considers defendant errone- incomplete.

ous or conclude that rule in Song apply is a sensible rule to aggravation

under the statute as well. Defendant admitted existence of the legal raise conviction. He did not issue He preclud- seeks to raise here. is thus doing ed from so.

III. DISPOSITION outside Whether a conviction Arizona is for an offense committed here which felony meaning would be a within 13-702(D)(11) legal A.R.S. issue which must in the be first raised trial court appeal.

or else precluded the issue is opinion ap- We vacate the of the court of * Martone, JJ., Court, grant Supreme Zlaket and of the voted to review. Aid, Legal Inc. Eri-

Southern Arizona Tucson, Kreider, appellant. ka Anne for Woods, Atty. Gen. Grant Bonnie E. Gen., Phoenix, Elber, Atty. for appel- Asst. (ADES). lee Balitis, Craig by John Don- Fennemore J. Phoenix, Timothy Berg, ald Gilbert Circle). (Blue appellee

OPINION

LANKFORD, Judge. from Arizona De- appeal This is an (“DES”) partment Security de- of Economic denying cision claim for claim allowed, initially on re- was administrative ultimately DES view the Board appellant determined employee for work-related miscon- disqualified duct and therefore pursuant Ariz.Rev.Stat. (“A.R.S.”) The Appeals 23-775. Board held had mis- employee that the committed known, violating uniformly conduct imposed by enforced reasonable rule employer. presented appeal is The central issue employer’s rule is work-con- whether the reasonable, nected and a violation of such a rule constitutes miscon- from un- duct employment benefits.

I. E. Monday, Fred

On June Wel- equipment heavy reported ler work more operator, just as he had done for than particular day, years. how- twelve On ever, employer, Blue Mr. Weller’s Atlantic, (“Blue Circle”) subjected him Inc. pursuant to a mandatory drug policy. Blue testing new required drug testing no testing but was precipitate cause to testing policy permitting random sweeping employees.1 of all mandatory Blue Circle informed 1. Blue Circle announced begin run May on June and would testing program April would 1988. On The record shows that the nev- Mr. testified Weller at the administrative using drugs er observed Weller or alcohol hearing that he had never used any Moreover, at work. Nor were there ever indica- alcohol at work. Weller testi- tions Weller was intoxicated or im- fied that he was told that if there were on paired job, when the was admin- pass test believe reason to that he would not istered, or indeed at time any during test, other he should not take it. He respond- years employment. his twelve Weller gladly ed would that he take the test be- had never been nothing arrested or convicted for cause he “had to hide.” any drug-related alcohol or offense. Dur- After Blue Circle terminated Weller’s ing his tenure with Blue Circle and its result, employment based on urinalysis predecessor, only Weller was involved Weller filed claim for ben- accidents, resulted in two neither of which benefits, Deputy granted efits. A DES disciplinary action. determining that Weller dis- had been charged for reasons other than misconduct employ- Blue Circle terminated Weller’s with his connected and that on July ment after Weller’s urine therefore, eligible he was for benefits. sample positive tested for cannabinoid me- tabolites, byproducts created Blue Circle contested this determination. body’s ingre- interaction chemical with the However, Appeal the DES af- Tribunal Marijuana is, marijuana. dients of decision of deputy. firmed the course, an unlawful substance. A.R.S. that tribunal found did 13-3405. produce sufficient evidence of misconduct to refute the denial of misconduct Mr. analysis An performed initial with (“A.A.C.”) Weller. Ariz.Admin.Code See enzyme-multiplied immunoassay an test or R6-3-51190. record, According “EMIT.” to the again appealed the decision margin approxi- EMIT has a of error allowing argued benefits. Blue Circle mately marijuana. confirmatory A 5% Appeals the DES Board that its test- analysis performed by gas chromatog- ing was a employ- reasonable rule of raphy/mass (GC/MS), spectrometer test contended, ment. Blue as it reported accuracy has a rate of which 99.- here, any tested level of cannabinoid 99%. is misconduct disquali- metabolites which yielded readings Both tests of 60 nano- employees receiving unemploy- fies from (ng/ml) grams per milliliter cannabinoids compensation. ment nanogram urine. A is one-billionth of a agreed Board Blue Cir- with a milliliter of a gram; is one-thousandth allowing cle and reversed decision bene- liter. Board held that Mr. had fits. The Weller quantity for violating Circle set the threshold been rule, regarded drug testing cannabinoids would be the violation marijuana con- misconduct “positive” indication of constituted connected with ng/ml Upon sumption. employment. request Blue Circle chose 50 Weller’s decision, metabolites in urine as the review of Board’s the Board cannabinoid level, conclusion that his termination threshold. Below that affirmed its regarded having be as not used mar- was misconduct. would based level, application appeal granted Weller’s ijuana; above that We drug. pursuant to 41-1993. be deemed to have used the to this court A.R.S. would testing began through July employees All were sub- tance before on June 15. 1988. tests, ject any em- employees they to the substance abuse its would not Circle assured ployee refusing subject test was to submit to the they sought assistance. How- be terminated Circle notified to immediate termination. Blue ever, abuse assistance would be avail- substance employees available for that assistance was once, repeat able offenders would problem any employee abuse substance subject immediate dismissal. seek this assis- and directed such argu- address whether Blue Circle several therefore makes Weller adversely af- question proved that Weller’s violation appeal, central ments workplace. fected the Is Blue rule—that a this: of cannabinoid metabol- test for level read opinion should not be as Our termination in urine alone warrants ites employers to retain workers who requiring reasonable, employment—work-related Legislature pre has drugs. abuse disqualifies of the rule such that violation terminating employ employers cluded receiving unemploy- employee from either on the off. ees who use compensation? hold that it is Instead, merely protected the it has em not. unemployment ployee’s right to receive compensation reason for the em when the II. demonstrably not ployee’s termination was begin stating opinion our by what justifying an Misconduct work-related. drug does not do. It does not decriminalize employer terminating employee an . employers from It not abuse. forbid an disqualifying employee from misconduct terminating drugs. employees who abuse concepts. are two distinct See benefits con- employers not prevent It does Security v. Dep’t Arizona Economic of Co., require ducting tests. It does not 394, 389, 125 Magma Copper Ariz. to unemployment paid be benefits 1089, (App.1980). employ P.2d workplace in the those abuse who situations, agrees employee an ment-at-will due to who are intoxicated work employer by to abide the rules of abuse elsewhere. Therefore, employment. an condition of employer’s violates the rule who Instead, em only we hold that the Indeed, employ may be terminated. at-will proof has met its of ployer burden pleasure may terminated at the of be Legislature has this case. The confined party Wag either with or without cause. receiving unemploy disqualification from Hosp., Memorial enseller v. Scottsdale compa of a ment benefits for violation 370, 381, Ariz. 710 P.2d adversely ny to violations which rule those Thus, an employer an who terminates at- workplace way. The affected the in some failing for ordi will proving that employer has the burden of narily liability. no incurs civil disquali actions constitute present appeal any does not involve v. Arizona fying misconduct. Castaneda damages: in- Sec., by Mr. Weller for civil 168 Ariz. claim Dep’t Economic of stead, unemployment compensa- (App.1991); v. seeks 815 P.2d Prebula Sec., fairly Unlike the nar- Dep’t 138 Ariz. tion from the state.3 Economic Arizona of liability wrongful civil (App.1983).2 row rules of 672 P.2d 978 Whether unemploy- proving employment, met its burden of termination compensation system is intended to disqualifying ment Mr. Weller’s test result was protective of question freely generously law re workers is a be misconduct Castaneda, Legislature in- families. The Arizona by their this court. See viewable Act Employment Security at 421. We tended the Ariz. at 815 P.2d employer discharges regulation, a worker by R6-3- c. An who 2. A.A.C. The DES has charges but or fails to 51190(B)(2)(b), misconduct refuses rule: established this any bring dispute evidence denial forth presumption Burden of Proof and B. discharge by the burden the claimant does upon proof indi- rests 2. burden proof. who vidual makes statement. added). (Emphasis established, pays the unem- discharge contributions to has been 3. b. When a fund, compensation ployment and the amounts employer to proof on the burden rests by past payments affected disqualifying of these reasons. it was show employees. employer’s by paid former admis- to that an burden be This claimant, generally §§ A.R.S. 23- A.R.S. 23-731. See § failure or refusal or his sion 701-709, charge 23-721-751. deny with it. when faced lighten the burden which “so often good falls 7. Violation without cause any crushing upon conduct, force unemployed rule of safety rule or other rule family. and his worker The achievement way related to the security requires protection of social which is reasonably imposed and com- against greatest hazard economic municated the employer or which can reasonably life.” A.R.S. 23-601. implied from the type § employment. hand, the other On benefits are limit- “persons unemployed through ed to no 23-619.01(B)(7)(emphasis added). A.R.S. § fault of their own.” A.R.S. 23-601. promulgated by Rules pursu DES Consequently, employee discharged an 41-1954(A)(3) provide ant to A.R.S. further certain kinds of misconduct is not entitled violating disqual benefits. A.R.S. 23- ifying misconduct if the rule is known 775(2). below, As discussed should have been known the employ misconduct is defined in the statutes and ee, enforced, uniformly and is “reason regulations. R6-3-51485(A). able.” “A disqual legislative goals To meet the ification for misconduct is assessed Act, Employment Security the Appeals discharge when a claimant’s is determined ” liberally interpret Board must the law and to be in ‘connection with work.’ grant narrowly the facts to benefits and R6-3-5185(A). ap A.A.C. The record on deny Munguia Department v. benefits. peal dispute indicates without that Blue 157, 162, Security, 159 Ariz. Economic 765 Circle’s substance abuse was made 559, (App.1988). P.2d 564 This court views company known to all employees and was light up evidence in the most favorable to uniformly concerned, enforced. We are holding the decision of the Board therefore, only with the reasonableness and will affirm the decision unless it is and work-relatedness of Blue rule.4 arbitrary, capricious, or an abuse of discre Thus, Blue Circle bears burden Castaneda, 494, tion. 168 Ariz. at 815 proving providing that its rule for termi- 421; at Indemnity P.2d v. Ari Warehouse employees solely nation of on the basis of Sec., Dep’t zona Ariz. Economic 128 results, positive marijuana test 504, However, (App.1981). 627 P.2d 235 more, is “connected work” and judgment we substitute our for the “reasonable.” agency’s regarding legal conclusions Id.; effect of facts. v. Gardiner Arizona Sec.,

Dep’t 127 Ariz. Economic IV. (App.1980). 623 P.2d reasons, following For the Blue Cir discharge proving cle failed to its burden of III. its that rule is both reasonable and work- Legislature’s provi- We must follow the First, related. Blue Circle never connected regarding eligibility unemploy- sions positive test result with either use Legislature has de- According or intoxication at work. to Blue disqualifies fined misconduct which a work- witness, expert “posi Circle’s own Weller’s er from benefits as follows: tive” test result did not show that he was negligent Wilful or misconduct connect- way impaired in intoxicated or includes, ed with work but is not limited urinalysis job. Nor did show when to: (on had been consumed substance off), consumed, or

or how much had been rule, R6-3-51270, explicitly requires implies that 4. The dissent that Blue Circle’s rule directly demonstrably fact, discharge need not be or work- misconduct be work-related. (Dissenting Opinion related. 496). 860 P.2d at general specifically references the re- contrary This is to both statute and rule. quirement in a connection found R6-3-5185 of 23-619.01(B)(7); See A.R.S. A.A.C. R6-3- with the work. text, 5185(A) (quoted supra). That another ability to consumption perform had di- that Weller’s work been whether by passive impaired, inhalation of he used inhalation or was ever ever rect duty, or drugs from other users. or alcohol while on smoke unusual absenteeism or other an- exhibited Similarly, introduced no evi- abuse. cillary effects of substance ng/ml its whatever show dence any- “positive” for a test result was value jurisdictions required have direct Other arbitrarily estab- thing more than own impairment perfor of work evidence chro- figure. gas The EMIT and lished tested level of mance evidence spectroscopy analyses matography/mass affect the on-the- would apparently Circle are stan- used can de job duties before However, drug testing. procedures dard compensation. nied See characterizing a test as result the basis Virginia Employment Comm’n v. Sut me- “positive” indication for cannabinoid (1989); Va.App. phin, 380 S.E.2d 667 by this in urine is not established tabolites Hercules, Inc., Va.App. Blake v. record this case contain no record. The (test (1987) alone results S.E.2d Appeal whatever evidence enough to show deliberate violation of ng/ml in- conclusion that 50 is an Board’s rule; employer impair must show dustry-wide standard. ment); Disk No. 1 Independent School test No other evidence linked Weller’s (Okl. Logan, 789 P.2d 636 County Tulsa v. example, his work. For result with impairment required App.1989) (proof neither of the addic- Circle offered evidence results dis in addition to marijuana, nor of a correla- tive nature of found). qualifying misconduct to be off-duty on-the-job and tion between use that use sufficient to an inference agree holdings. with these off-duty on-duty highly makes use like- use in- Blue Circle contends these cases are produce also to evi- ly. Blue failed Circle a apposite jurisdictions these lack because marijuana to Weller’s denial of dence rebut 23-619.01(B)(7) to statute similar A.R.S. § ng/ml by showing that level use allowing disqualified from be only result from direct intentional could violating company a Ne- rule. inhalation by pas- could caused and not be vertheless, cases these are concerned while smoked mari- sive inhalation others the reasonableness and work-related- both presence. in juana Weller’s crite- drug-testing very of a rule—the ness short, methods are In while Legislature and ria used the Arizona detecting extremely pres- accurate of a DES to determine whether violation marijua- quantities minute ence even disqualifies employee company rule urine, byproducts in the decision to des- na compensation. unemployment from “positive” a ignate certain amount subjective employer An result is a one. Louisi- Blue Circle relies cases from “posi- sample deem the urine to be could proposition that and Illinois ana ng/ml, tive” for cannabis positive use employees who has any other level. Circle not shown benefits, regard- disqualified from may be gram of a that detection of billionths impairment. In of actual New Or- less in urine demon- metabolites cannabinoid Masaracchia, 464 v. leans Public Service employ- on the strates some adverse effect (La.App.1985), the driver of So.2d positive is thus that a result ee’s work and delivery terminated van was mail In- necessarily the work.” “connected with and denied benefits after from deed, tes- expert own witness marijuana. testing positive for any test result did not show tified that the signs physical employee showed no ability to work. impairment of Weller’s testimony impairment, there compa- marijuana case, mis- smoked there no evidence of In this contrast, Blue In while at work. “positive” ny van other than conduct Weller usage no evidence offered urinalysis. presented No evidence was Circle job company proper- employer on the or on lacks Weller evidence that marijuana job. used Weller ty. “[G]en- erally what a worker when is off- Administrator, Eugene In v. Div. of duty employer is of no concern to the (La. Employment Security, 525 So.2d 1185 holding has no basis for him App.1988), employ- the court held that an off-duty accountable for his conduct.” voluntary exposure marijuana ee’s R6-3-5185(B). It is when “off- disregard was a willful of the em- smoke duty relationship conduct such a bears interests, ployer’s and therefore the em- job as to render him unsuitable to con- disqualified ployee was from benefits. The position tinue in his because of the adverse explanation pas- court decided without op- affect would have on the marijuana produced sive inhalation of activity eration” that considered signs physical impairment no was never- “connected with the work.” Id. For ex- theless with work” dis- ample, off-duty “connect[ed] the after-effects of intoxi- qualified cation on the {e.g., manifested chronic effects, any physical absenteeism, Absent we inefficiency, sleeping on the job) clearly fail to see a connection between work-related and warrant substantial work, denial benefits. A.R.S. 23-619.- positive test and and we 01(B)(2). However, test result simply disagree. revealing marijuana quan- of unknown Blue Circle also relies on Overstreet v. ingested tity inhaled or at an unknown Department Employment Security, prior may only off-duty activity time reflect Ill.App.3d 118 Ill.Dec. entirely unrelated to work. N.E.2d 185 The claimant was ter- Moreover, infringes a rule which using after he admitted cocaine minated justification on a substantial worker’s bodi contrast, off-duty. while Mr. Weller ly privacy personal life is not “reason using marijuana, forcing Blue denied R6-3-5185(B) reflects, able.” As A.A.C. discharge proving its burden of miscon- employers legitimate no interest have R6-3-51190(B)(2)(b). duct. A.A.C. The dif- regulating employee’s off-duty an behavior in the also distin- ference involved they unless can show that such behavior from case.5 guish Overstreet drug workplace.7 affects the Because a urinalysis— specifically marijuana argues Blue nevertheless the rule test— Circle may easily consumption detect oc which permitting termination is reasonable and off-duty, curred the concern that Blue Cir the need work-related because drug testing program may infringe cle’s employer for not create actual harm to the employee’s private conduct is a serious an employee’s disqualify- misconduct to the Cynthia one. William F. Adams and L. However, ing.6 requiring reasonableness Remmers, Drugs and Alcohol in the connection, Legislature the has and work Workplace: Technology, Policy, Law and merely theoretical effects on indicated that h High-Tec Computer 2 Santa Clara workplace justify of the do not a denial nology (1986). L.J. 322 demonstrable, signifi- At a least contends that potential cant for harm must exist. See Blue Circle nevertheless R6-3-5145(A)(4). employer’s of an rule the reasonableness A.A.C. cocaine, See, e.g., Rulon-Miller v. International Busi an addictive 7. 5. Overstreet involved period after use is Corp., for which the of detection Cal. Cal.App.3d ness Mach. 162 208 period (1984) than the detection for mar- (rejecting argu much shorter ijuana. Rptr. employer’s an 524 Beverly A. Potter and J. Sebastian Orfali, employee’s personal that an romantic rela n. Drug Testing Work, interfering ability per tionship her Thus, result for cocaine more a test on-the-job job); City El her See also Thorne v. form strongly suggests impairment use or (9th Cir.1983) (holding Segundo, F.2d of this while at work. protected by pri off-duty conduct is sexual interest). vacy Sec., Dep't Economic 6. See Ross v. Arizona of (App.1991). Ariz. P.2d 318 part type the evidence the em- requiring based on Without may be assessed work-connected, ployer’s employ- and other sur- rule is an employer’s business regulate any aspect employ- er could of an rounding A.A.C. R6-3- circumstances. private employer ee’s conduct 51485(A)(2). may insist that its might For safety improper. consider immoral or obey all employees health and laws example, company banning rule after- relating workplace. may It termi- banning hours use of tobacco or a rule impaired on nate who are might public promote policies cohabitation incurring liability job without increased family health But a concerning or values. unemployment compensation contributions. company employees’ rule intrudes Nevertheless, deny an private requires lives a demonstrable and “safety net” of connection, not substantial work a theoreti- present- family a worker and his cal, remote, insignificant connection. ing proof job- of the reasonableness and rule company reasonably must address rule. If relatedness of its employer’s legitimate a real threat implicated workplace safety were prying business interests without excessive use, by off-duty marijuana then could private into the lives its em- bodies produced that fact. have evidence of ployees. disqualify To worker from the benefits generalized Blue Circle also relies on a family protect which and his worker public policy against illegal use to disaster, company’s from financial drug testing justify rule. See A.R.S. implement employ- must than do more (a knowingly person 13-3405 shall not private public er’s views matters about use, marijuana). possess, produce sell policy. R6-3-5145(A)(3). An A.A.C. See However, unemployment compensation general moral for a recognizes public system also public policy against drug abuse is not con- personal protection off-duty lives employee’s This is nected with work. R6-3-5185(B). employees. See See every the rule in case of miscon- Ariz. “The Art. 2 8.8 also Const. [em- when a worker is duct—even ployer’s] light rule must be reasonable alleged for an violation public policy and should not constitute public Illegality law. infringement upon recognized rights employee’s misconduct conduct privileges of workers as individuals. is “connected with the R6- work.” A.A.C. Rules to conduct out- affect 3-51490. employer’s premises side which reasonably argues Finally, could not affect the that “disobe- itself, dience, generally by adversely the em- interests are considered unrea- affects R6-3-51485(A)(2). argu- ployer’s Accepting interests.” sonable.” A.A.C. surgery lodged dissenting opinion complains undergo to a bullet in a 8. The that Weller remove Constitution, cases, the and suspect’s drug-testing never relied on Arizona In chest. two argues provision is also that the constitutional drug approved testing programs. Howev- court 230, inapplicable. (Dissenting Opinion at er, highly cases the was selective in both 497). arguments point at miss the of P.2d These random, (neither as Blue universal nor provision. We our citation to constitutional policy) justified by "compel- and was Circle’s regulation and as cite the Constitution the DES ling’’governmental interests interdiction public policy protect to Arizona’s evidence of safety. Treasury Employ- National railroad deny privacy. The individual dissent not Raab, 656, ees Von U.S. 109 S.Ct. Union v. exists, specifically in that such a the un- 1384, (1989); L.Ed.2d Skinner v. Rail- Moreover, benefits context. Ass’n, 602, way Executives’ 489 U.S. Labor colleague by dissenting citations our 1402, 103 L.Ed.2d 639 The court S.Ct. point it. three our rather than undermine all public employees’ also diminished relied on cited, Supreme cases the United States Court expectations privacy on nature of of based by privacy protected interests held that importantly, employment. both Most their to U.S. Constitution Fourth Amendment recognized protected that the Lee, cases 470 U.S. were In Winston v. invaded. right privacy against or of unwarranted (1985), a the court 105 S.Ct. 84 L.Ed.2d 662 testing. unduly compel suspect could a intrusive held that the state not employees’ employers leave ment would bodies Circle and other have a legitimate prohibiting employees interest in completely mercy at private lives working they physically while are employers’ morality their views and the mentally impaired by drugs. Impaired adopted to enforce such rules views. only not menace to the workers are vitali- directly argument contrary ty economy of our also to the safety but Legislature’s protection of Arizona citi- community and other workers. How- receiving unemployment interest zens’ ever, Blue abuse policy Circle’s substance maintaining personal and in their not impairment. did address Nor did Blue privacy. signs employees Circle monitor its for add that we hasten to do not leave impaired performance. policy provides Its against drug employers defenseless abuse solely termination based random example, positive arbitrarily their For urine test set at an workers. results low discovery after threshold.9 drug test administered behavior, erratic lack of coordi- evidence of reasons, foregoing Based on we hold absenteeism,

nation, chronic or other ob- erroneously that the Board denied impairment may signs of actual suf- served claimant em- prove fice both work-relatedness ployer of proving failed to meet its burden reasonableness. providing that termination results, based not the Urinalysis is also method of more, was reasonable work-related. testing. Hand-eye tests coordination Accordingly, judgment Ap- on-the-job as impairment which focus on peals and the Board is reversed award opposed to an conduct off the Appeal is reinstated. Tribunal job help employers draw the line be- reasonable, work-related rule and tween a J., CLABORNE, concur. regulates impermissibly one which the em- JACOBSON, Presiding Judge, Stevens, ployee’s life. William private K. dissenting: Impairment, Workplace N.Y. Measuring Times, March Cl. See also Contrary majori- I must to the dissent. Pharmacological contention, ty’s Goodman & Gilman’s I that Blue do believe Therapeutics (8th 1990) ed. either Circle had the to show Basis of burden coordination). impairs (marijuana Such job or Weller was intoxicated on the commonly by police administered tests are ability impaired by perform mar- for alcohol intoxication and are officers use. ijuana Weller contended he sobriety tests.” same intoxication, as “field on-the-job known guilty detecting intoxication, are effective in similar tests was not mis- by A.A.C. R6-3- marijuana’s deleterious effects. See Good- conduct violation covered clearly regulation pro- supra at 551. 51270.10 As Gilman’s, man & assertion, impaired, are apparently terminate who on the makes the 9. Blue Circle intoxicated, record, surely they as because unsupported while its test supervisors may, may intoxication, then direct its to be it any intoxicated does not establish signs intoxication. The observant for person taking would the test fail. Scientific may then be confirmed urine intoxication contrary. apparently to the THC is evidence sobriety test. a field and/or appear may immediately in not metabolites therefore, specimens, and an urine part: provides, in 10. R6-3-51270 marijua- ingesting reporting after to work soon discharged is for A. a claimant ... When immediately positive might test for mari- na work, reporting using illegal drugs to juana though person may be under the even intoxicants, the influence of a work ... under drug. See of the influence Goodman Gilman’s, & disregard interest be supra at 552. established. Moreover, discharge who test off fact that some those A intoxication B. for actually impaired justi- be positive may it can shown is not unless be off-duty is fy positive a intoxication con- to those who test claimant’s of benefits denial work____ added.) (Emphasis nected unimpaired. If Blue desires to with and are confirmatory vides, Blue Circle’s bur- most favored be- have been would accuracy reliability, affected on- cause of its and with off-duty conduct den to show But, an error rate of close to zero. at a Blue Circle did not Because duty work. test, violation, per its lack of evidence cost of from to it is also allege $30 $75 such a expensive. the most point is understandable. on this brings Testing: us the real issues A Re- Employment This then National AIDS, body porter Polygraph, Drug, the administrative and and both before p. Testing, Did Blue Circle show a violation D:9. this court: Genetic and, so, is company of a by Weller sample subjected urine was Weller’s that rule reasonable? test, confirmatory and tested at 60 this legal per and factual milliliter.11 place nanograms In order to these of cannabinoids context, Weller, employees in a brief review of In 18 other issues addition the record is and terminated. pertinent facts established tested were heavy industry simply in Blue Circle is a is no issue whether Weller order. There company policy manufactures cement and employer that violated a of which was employed products. company policy Weller was as cement aware and whether operator. heavy equipment uniformly among a and truck enforced all Blue Circle employees. adopted a com- May policy. This prehensive substance abuse that, majority position takes the re- (1) components: rules deal- policy had two gardless predicate, poli- this factual ing on-premise possession of alcohol with cy must also “connected with the work” (2) drugs, adoption In concluding and “reasonable.” that the testing program. prohibition alcohol policy neither connected substance abuse against on-premise possession of alcohol or reasonable, majority nor with work immediately; vio- drugs was to take effect that, of a assumes unless the institution this rule could result termi- lation of drug-free workplace probable has the re- nation. lessening impairment job, sult of neither work-related nor reasonable. rule is testing program was not to become simple logic contrary, so Not approximately thirty days until effective dealing miscon- regulations are the with later, 1988. refusal on June intoxication, discharge duct. Unlike pass the test or failure to the test to take effect, miscon- requires on-the-job which termination, any employee result would is not so involving duct a rule violation problem could a substance abuse narrow: by notifying Blue Circle avoid termination prior violating treatment to June requesting discharged employee, An rule, were All of Blue Circle’s generally 1988. is considered informed of the institution of substance misconduct connected testing. lead time for policy and the abuse with the work. signed that he likewise Weller a statement policy. of the

was aware light The rule must be reasonable by a test All test results were confirmed public policy and should not constitute spec- “gas chromatography/mass known as rights upon recognized infringement exhibit, (GC/MS).” An which troscopy test as individuals. privileges of workers evidence, introduced into describes R6-3-51485(A) added). (emphasis test as follows: Thus, regulation, the “connect- tech- under specific sophisticated The most requirement is satisfied the work” gas chromatog- ed with nique is a combination rule that if violated spectroscopy. It is the the worker raphy and mass agency that "positive" administrative majority before contends that such a 11. The subjective. showing marijuana purely showing improper. is threshold However, by the claimant no attack was made light in public is reasonable policy and employer’s interests are generally consid- infringe upon does not recognized rights. ered unreasonable. Clearly, public policy of the state of question I regulation whether this is in- against Arizona is marijuana the use of applicable. deed policy Blue Circle’s does and, contrary to the majority’s position, prohibit off-job marijuana; use of it does not reflect an employer’s personal be- prohibit coming job to the with mari- in morality. liefs The criminal code makes juana system. question one’s The then use, possession, its production under cer- becomes appearing whether on the with tain felony. circumstances a A.R.S. 13- marijuana in system one’s could reasonably majority point 3405. The misses the affect Blue Circle’s interest. It should be arguing private conduct illegal allows observed that Weller operating heavy activity. public policy No such exists. equipment, potential where the for misuse majority, The in an effort to counter this could have disastrous effects. Blue Circle against illegal activity, points to a that, argues although policy can- supposed counter-prevailing policy embod- not detect intoxicated, those who are not it ied in art. 8 of the Arizona Constitu- certainly can detect those who are. This

tion: aside, appears issue poten- to me that the person

No shall be disturbed in his tial of marijuana who are users private affairs, invaded, causing is, his home harm to Blue Circle’s business authority face, without of law. on its justification a sufficient to ask drug-free for a work environment and to at Weller has never this court or before place least the burden on the employee to body administrative contended that tak come forward with evidence marijuana ing sample a urine violated this constitu use and its detection can never show im- provision, tional which is understandable pairment. This Weller did not do. I there- simply applicable because it is to Blue R6-3-51485(A)(2), fore would find A.A.C. testing policy. See National Trea applicable, to have been violated. sury Employees Raab, Union v. Von U.S. 109 S.Ct. 103 L.Ed.2d 685 One final comment needs to be made. (1989); Railway Skinner v. Labor Execu majority seems to contend that Wel- Ass’n, 602, 625, tives’ 489 U.S. 109 S.Ct. marijuana use, ler’s denial of coupled with 1402, 1417, 103 (1989)(the L.Ed.2d 639 time lack use, of a criminal record of is procure sample it takes to a urine for test sufficient to overcome the test result of ing “infringe significant cannot itself marijuana system in his or at least make interests”); privacy Lee, Winston v. equally the evidence weight balanced. The 1611, U.S. 105 S.Ct. given to the evidence in this case is for (1985) (it L.Ed.2d 662 “society’s judg Board, not this court. Because refusal ment that blood tests do not constitute an to take the grounds test was also for termi- unduly imposition extensive on an individu nation, Weller’s in subjecting bravado him- personal privacy bodily integrit al’s self to the test is both understandable y”).12 a circumstance to be considered the trier of fact.

Finally, majority por- contends that a R6-3-51485(A)(2), dealing tion of A.A.C. I would affirm. conduct, off-duty applicable. This regulation provides, part:

Rules to affect the conduct employer’s premises outside the reasonably which could not affect majority allowing 12. The states those cases their an adversarial confrontation position, Thus, which I will not take the time to dis- on the issue. the court has not had the is, pute. point the issue of invasion of input benefit of counsels' as to whether privacy except by majority. was not raised majority or the dissent is correct. own, majority solely again raises this on its

Case Details

Case Name: Weller v. Arizona Department of Economic Security

Court Name: Court of Appeals of Arizona

Date Published: Feb 11, 1993

Citation: 860 P.2d 487

Docket Number: 1 CA-UB 91-026

Court Abbreviation: Ariz. Ct. App.