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Breeding v Layne-Northern Co 12.79

Section 29(1)(b)

MISCONDUCT, Drug testing, Treatment program

CITE AS: Breeding v Layne-Northern Co, Berrien Circuit Court No. 96-3726-AE-T (February 24, 1997)

Appeal pending: No

Claimant: Carl R. Breeding

Employer: Layne-Northern Company

Docket No. B95-11686-138540

CIRCUIT COURT HOLDING: An employee's refusal to participate in an EAP when participation is required for the employee to return to work, is disqualifying misconduct.

FACTS: The employer suspended and later discharged the claimant for testing positive on a random drug screen for marijuana and for refusing to participate in an Employee Assistance Program (EAP). The employer had a random drug testing policy pursuant to Department of Transportation regulations. Under the employer and DOT policy, if an employee tested positive for drugs, the employee is suspended and must participate in an EAP to return to work. The employer allowed an employee with a positive drug test to have the sample retested at the employee's expense if the retest was positive. The claimant denied using marijuana but did not request a retest. The claimant met with a counselor. The counselor concluded the claimant had a drinking problem rather than a drug abuse problem. The counselor recommended the claimant attend drug counseling and AA meetings. The claimant refused.

DECISION: The claimant is disqualified for benefits under Section 29(1)(b).

RATIONALE: The phrase "work connected" is not to be narrowly construed so as to apply only to misconduct occurring at the workplace. Parks v MESC, 427 Mich 224, 238 (1986). The claimant's refusal to participate in an EAP resulted in his inability to return to work. These actions were misconduct in wilful or wanton disregard of the employer's interests.

The claimant raised a number of constitutional issues on appeal to the circuit court that had not been before the Referee or Board of Review. The court declined to consider those issues as its scope of review was limited only to questions of law and fact on the record before the Referee and Board of Review.


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