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Massey v Ace Trucking Co. 12.128

Section 29(1)(b)

MISCONDUCT, Drug testing

CITE AS: Massey v Ace Trucking Co, Kent Circuit Court, No. 03-00363-AE (February 3, 2004)

Appeal pending: No

Claimant: Clettes J. Massey
Employer: Ace Trucking Company
Docket No. B2002-08393-164928W

CIRCUIT COURT HOLDING: Failure to timely report for drug testing, when directed by the employer, is disqualifying when the reasons for tardiness demonstrate an intentional and substantial disregard for the employee’s duties and obligations to the employer.

FACTS: Claimant worked as a full-time truck driver. Employer discharged claimant for failing a drug test, but reinstated him with the understanding that he had completed a rehab program. In fact he had not, so the employer sent him to a program. On March 1, 2002, claimant was at the end of the program. He called employer at 9:30 am and was told to report for drug testing. Claimant reported for drug testing at 12:50 pm after taking lunch, and the test result came back as diluted. On March 5, 2003 at 3:50 pm, employer told claimant to report immediately for another drug test. The claimant did not directly report for drug testing, instead he talked to a co-worker for 15-20 minutes. He testified that while driving to the drug testing facility he was in a car accident, and then went to McDonald’s. Claimant admitted he was told to immediately report for drug testing, but failed to do so. Claimant reported at 6:00 pm on March 5, 2003 for the test; the test result came back as diluted. Employer’s rules, and USDOT rules, required an employee to immediately report for drug testing when directed, to avoid altering the test results.

DECISION: Claimant is disqualified under 29(1)(b).

RATIONALE: Claimant engaged in misconduct in failing to immediately report for drug testing when directed by the employer. Employer discharged claimant after he twice deliberately delayed reporting for drug testing, with the result that the accuracy of those tests was compromised. Claimant’s tardiness in reporting for testing was not due to reasons beyond his control or otherwise with good cause, which would have been non-disqualifying. His actions were found to have been a direct and intentional effort to avoid taking a drug test that would yield an accurate reading.


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