           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Health System,                      :
                       Petitioner              :
                                               :
                      v.                       :    No. 886 C.D. 2019
                                               :    ARGUED: February 13, 2020
Unemployment Compensation Board                :
of Review,                                     :
                    Respondent                 :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge (P.)
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION BY
SENIOR JUDGE LEADBETTER                                              FILED: May 11, 2020


              Washington Health System, Employer, petitions for review of a June
2019 order of the Unemployment Compensation Board of Review that vacated its
November 2018 order1 and held that Kitty Moriarty, Claimant, was not ineligible for
unemployment compensation benefits under Section 402(e.1) of the Unemployment
Compensation Law (Law) (discharge from employment for failure to submit to
and/or pass a drug test).2 We affirm.



    1
      Claimant petitioned for review to this Court from the Board’s November 2018 determination
of ineligibility. Upon the Board’s application and with Claimant’s agreement, this Court remanded
the matter to the Board for reconsideration of its prior decision based on the entire record.
    2
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e.1). Section 402(e.1) was added by Section 3 of the Act of December 9, 2002, P.L. 1330,
and became effective immediately.
               Claimant worked full-time for Employer as a licensed occupational
therapist from November 2015 to March 2018. (Board’s June 18, 2019 Decision,
Finding of Fact “F.F.” No. 1.) On March 26, 2018, Employer asked Claimant to
submit to a random drug test pursuant to its Drug and Alcohol Free Workplace
Policy.3 The policy “provides that being under the influence of drugs or having
drugs in one’s system while at work is grounds for disciplinary action up to and
including discharge.” (F.F. No. 2.) The definition of “drug” is “any substance
producing effects on the central nervous system, or any controlled substance.” (F.F.
No. 3.) The definition of “under the influence” is “any amount that is capable of
rendering a positive result in any drug test.” (Id.) Additionally, even though the
policy does not prohibit the legal use of prescription or non-prescription drugs, it
“requires that all employees disclose to the employer when taking any drug that
poses a significant risk of substantial harm to the health or safety of the individual
or others, or when taking any drug that renders the employee unable to perform the
essential functions of the job.” (F.F. No. 4.)
               Before administration of the test, Claimant disclosed that she was
taking Cannabidiol (CBD) oil, which she purchased over-the-counter to manage her
cancer-related symptoms. (F.F. No. 7.) After “[E]mployer notified the [C]laimant


    3
      (October 2017 Policy, Employer’s Separation Information, Exhibit 10; Reproduced Record
“R.R.” at 21a-26a.) Although Claimant testified that she had never seen the policy document dated
October 2017, she acknowledged receipt of the policy by signature dated November 30, 2015, and
agreed to follow it. (F.F. No. 6.) Employer’s witness testified that the only updates that Employer
made to its policy in 2017 involved a percentage change and a name change to Washington Health
System. (May 17, 2008, Hearing, Notes of Testimony “N.T.” at 6; R.R. at 62a.) The witness
stated that Employer communicated these updates to all of its employees. In any event, Claimant
acknowledged that she was aware that Employer could test her for drugs and that it could discharge
her from employment for a positive test result. (Id. at 13; R.R. at 69a.)



                                                2
that her drug test was positive for marijuana[,]”4 it immediately suspended her
employment for violation of the policy. (F.F. No. 9.) Subsequently, Employer
terminated Claimant’s employment. The local job center found Claimant to be
ineligible for benefits under Section 402(e.1) of the Law. Claimant appealed. A
referee held a hearing at which Employer’s human relations partner, Katie Barron,
testified on behalf of Employer. Claimant appeared with counsel.
                 Barron testified that Employer discharged Claimant from employment
when the results of a random drug test came back positive for marijuana. Claimant’s
discharge was automatic in view of the fact that Employer had provided her with a
final written warning for an unrelated November 2017 infraction. (May 17, 2018,
Hearing, Notes of Testimony “N.T.” at 4; Reproduced Record “R.R.” at 60a.)
Barron stated that even though there was a period during which Claimant could have
contacted her and provided additional information, Claimant did not do so. (Id. at
5; R.R. at 61a.) However, Barron acknowledged that Claimant requested a second
drug test and wrote comments on Employer’s discipline counseling record.5 In any
event, Employer did not submit documentation of the test results into evidence.
When Barron started to testify as to what someone at Clinical Reference Lab, the
third-party testing agency, told her with respect to the test results, counsel for
Claimant made a hearsay objection. The referee sustained that objection. (Id.)
                 On cross-examination, Barron testified that under Employer’s policy,
grounds for disciplinary action include being under the influence of alcohol or drugs,
or having drugs in one’s system while on Employer’s premises or work sites. Barron

    4
        (F.F. No. 8.)
    5
       (March 26, 2018, Discipline Counseling Record, Employer’s Separation Information,
Exhibit 9; R.R. at 19a-20a.) Claimant commented that she did not do drugs and that she started
taking CBD oil to help with the long-term, residual effects of cancer surgeries and chemotherapy.
Additionally, she wrote that she advised the nurse of that fact before the drug test.


                                               3
testified that Claimant had been taking CBD oil. Noting that Claimant worked in
patient care, Barron opined that Claimant would pose a significant risk to herself,
other employees, and patients if she was under the influence of drugs. However,
Barron did not present evidence that Claimant’s ingestion of CBD oil would affect
or did affect her performance in ways prohibited by the policy.
             Additionally, Barron emphasized the aforementioned definitions of
“drug” and “under the influence.” Further, she acknowledged that the policy does
not prohibit the legal use of medications containing alcohol or the legal use of drugs.
However, the policy requires all employees to disclose such use to Employer, in
advance of working. Section C of the policy (Legal Medications/Drugs) states in
part:

             This Policy does not prohibit the legal (prescription or
             non-prescription) use of medications containing alcohol or
             the legal (prescription or non-prescription) use of drugs,
             but [Employer] requires that all Employees disclose to
             [Employer], in advance of working, when taking
             medication containing alcohol or any drug that poses a
             significant risk of substantial harm to the health or safety
             of the individual or to others, or when taking any
             medication containing alcohol or any drug that renders the
             Employee unable to perform the essential functions of the
             job. In such instances [Employer] will make reasonable
             accommodations, if appropriate. It is the Employee’s
             responsibility to consult with the Employee’s licensed
             healthcare professional to determine if any medication or
             drug requires disclosure under this paragraph.

(Policy at 2; R.R. at 22a) (emphasis added).
             Following Employer’s presentation of its case, Claimant answered
“yes” in response to the referee’s question as to whether Employer notified her that
she had tested positive for the presence of marijuana. (N.T. at 13; R.R. at 69a.)


                                          4
Additionally, she testified that she self-reported the random drug-test incident to the
Department of State6 after which she submitted to an evaluation at Greenbriar
Treatment Center to determine whether she suffered from a condition that would
make her eligible for enrollment in a voluntary recovery program.7 (Id. at 11; R.R.
at 67a.) Upon the center’s determination that she did not meet the criteria for
substance abuse disorder and “no treatment” recommendation,8 the Department of
State issued a letter indicating that it had closed her voluntary recovery program file
based on the results of the approved evaluation.9 (Id.)
                 Additionally, Claimant testified as to her understanding that CBD oil
could be purchased over the counter, that some oils tested positive and some oils
tested negative, but that the ones that tested positive were false positives. (Id.)
Claimant acknowledged that she did not provide Employer with anything from a
healthcare provider to that effect. (Id.) Further, Claimant reiterated that she did not
do drugs. (Id. at 13; R.R. at 69a.)
                 The referee affirmed the local job center’s determination of
ineligibility.     In November 2018, the Board affirmed.10                   Claimant appealed.

    6
      (March 27, 2018, Letter to ot-complaints@pa.gov, Claimant Questionnaire Attachment,
Exhibit 15; R.R. at 11a.)
    7
      (April 2, 2018, Letter from Department of State, Claimant Questionnaire Attachment,
Exhibit 16; R.R. at 13-14a.)
    8
        (May 10, 2018, Letter from Greenbriar; Claimant’s Hearing Exhibit 1; R.R. at 73a.)
    9
        (May 1, 2018, Letter from Department of State, Claimant’s Hearing Exhibit 2; R.R. at 74a.)
    10
        In relevant part, the Board found that while Employer did not enter the results of the drug
test into the record, Claimant admitted that she failed the drug test. Specifically, the Board stated:
“It is abundantly clear from the record that Claimant admitted to testing positive for marijuana.
Importantly, [Claimant] acknowledged in her testimony and in her documents to the [Department
of Labor and Industry] that she failed a drug test and that she utilizes CBD [oil], a derivative of
marijuana.” (Board’s November 2, 2018, Decision at 2.) Accordingly, the Board determined that



                                                  5
Following this Court’s order granting the Board’s request for remission of the
appeal, the Board vacated its prior decision and held that Claimant was not ineligible
for benefits. The Board’s analysis includes the following:


              [Employer] proved that it has a policy prohibiting
              employees from reporting to work under the influence of
              a controlled substance and that it can randomly test
              employees. [Claimant] was aware of [Employer’s]
              policies. [Employer] alleged that [Claimant] tested
              positive for marijuana, but, notably, did not submit into
              evidence the drug test.

              [Claimant] testified that her ingestion of CBD oil created
              a drug test with a “false positive.” The Referee rejected
              this argument, reasoning that [Claimant] did not present
              any evidence that CBD oil could have that effect. On
              appeal, [Claimant] again argues that her drug test was a
              “false positive.” She argues that CBD and marijuana are
              derived from the same plant, but, unlike marijuana, CBD
              is not a psychoactive substance and it is legal.

              THC stands for tetrahydrocannabinol and is the active
              ingredient of marijuana. THC is listed as a controlled
              substance; CBD is not. See 28 Pa. Code §25.72. The
              packaging for medical marijuana must specify the
              percentage of THC and CBD.              See 35 P.S.
                                 11
              §10231.801(i)(5).[ ] A medical marijuana dispensary
              may dispense a product with a THC concentration of 0.3%
              or less. See 28 Pa. Code §1161.27(d).

              [Claimant] admitted that she ingested CBD, which,
              although it is derived from marijuana, is not a controlled
              substance. Ingestion of CBD alone would not violate a
              substance abuse policy. To be dispensed legally, CBD oil
              must have a THC level of 0.3% or less. [Claimant]
              believed that she was ingesting a legal substance, which

once Employer proved its policy and the fact of Claimant’s positive drug test, the burden shifted
to Claimant.
    11
       See infra note 12.


                                               6
                she purchased over the counter and disclosed to
                [Employer]. It is [Employer’s] burden to prove that
                [Claimant] violated its substance abuse policy. Because
                [Employer] did not submit [Claimant’s] test results into
                evidence, there is no evidence in the record as to the
                percentage of THC it detected. Based on the foregoing,
                [Employer] did not meet its burden to prove that
                [Claimant] violated its substance abuse policy. Therefore,
                [Claimant] is not ineligible for benefits under Section
                402(e.1) of the Law.


(Board’s June 18, 2019 Decision at 2-3) (emphasis added) (footnote added).
                On appeal, Employer asserts the following issues: (1) whether the
Board erred in concluding that Employer failed to establish the positive results of
the drug test; (2) whether the Board erred in concluding that Claimant’s ingestion of
CBD oil alone would not violate Employer’s policy; (3) whether the Board erred in
accepting Claimant’s subjective belief as a defense under Section 402(e.1) of the
Law; and (4) whether the Board erred in relying on the Medical Marijuana Act12 and
related regulations. Our disposition of the first issue is dispositive.
                Where an employee refuses to take or fails to pass a drug test, the
employee’s discharge is properly analyzed under Section 402(e.1) of the Law and
not Section 402(e). Dillon v. Unemployment Comp. Bd. of Review, 68 A.3d 1054,
1057 (Pa. Cmwlth. 2013). Section 402(e.1) of the Law provides that an employee
is ineligible for benefits for any week

                [i]n which his unemployment is due to discharge or
                temporary suspension from work due to failure to submit
                and/or pass a drug test conducted pursuant to an
                employer’s established substance abuse policy, provided
                that the drug test is not requested or implemented in
                violation of the law or of a collective bargaining

    12
         Act of April 17, 2016, P.L. 84, 35 P.S. §§ 10231.101-10231.2110.


                                                7
             agreement.

43 P.S. §802(e.1).
             To render an employee ineligible for benefits under Section 402(e.1),
an employer is required to demonstrate (1) that it had an established substance abuse
policy and (2) that the claimant violated the policy. Bowers v. Unemployment Comp.
Bd. of Review, 165 A.3d 49, 52 (Pa. Cmwlth. 2017). If an employer meets its initial
burden, a claimant will be rendered ineligible for benefits unless the claimant is able
to demonstrate that the employer’s substance abuse policy is in violation of the law
or a collective bargaining agreement. Id. In contrast to Section 402(e), Section
402(e.1) does not permit a claimant to show good cause or justification for a
violation.
             In the present case, the burden never shifted to Claimant because
Employer was unable to prove that she violated the policy. Employer argues that
Claimant admitted that she “failed” the drug test. That is inaccurate; she admitted
only that someone told her so.       This acknowledgement did not constitute an
admission because she had no knowledge of the underlying fact. It was simply
uncorroborated hearsay, which she had no burden to deny. Carson v. Unemployment
Comp. Bd. of Review, 711 A.2d 582, 585 (Pa. Cmwlth. 1998) (holding that it is
inappropriate to require a claimant to deny uncorroborated, hearsay allegations,
especially when employer has the burden of proof). She always maintained the
possibility that her use of an over-the-counter herbal remedy could have resulted in
a false positive test result. In addition, she consistently denied any drug and alcohol
use. (Claimant Questionnaire, Exhibit 13; R.R. at 7a.)
             Moreover, Employer independently failed to carry its burden of proof.
Besides Barron’s attempt to testify as to what a third-party testing company



                                          8
employee allegedly told her, which the referee correctly excluded as hearsay, Barron
failed to provide any information relating to the drug test. (N.T. at 5; R.R. at 61a.)
As noted, she did not provide the results at the hearing.13
               Additionally, Employer did not prove that Claimant violated its work
rule because it presented no evidence that the CBD oil that she ingested would affect
her performance in ways prohibited by the policy. As the referee observed at the
hearing, there were no allegations that Claimant was unable to perform the essential
functions of her job when the nurse conducted the drug test. (Id. at 7; R.R. at 63a.)
Finally, the CBD oil that Claimant ingested was not a controlled substance. See 28
Pa. Code §25.72 (tetrahydrocannabinol, the active ingredient in marijuana, is a
controlled substance, but CBD is not).
               Accordingly, we affirm.



                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    13
        A positive drug test is a medical fact. UGI Utils., Inc. v. Unemployment Comp. Bd. of
Review, 851 A.2d 240 (Pa. Cmwlth. 2004). The proponent of a lab report must present evidence
sufficient to support a finding that the report is what its proponent claims. Id. Where, as here, a
third party prepared the test results, Employer at a minimum should have submitted evidence
regarding a chain of custody and the test results. See O’Brien v. Unemployment Comp. Bd. of
Review, 49 A.3d 916, 919 (Pa. Cmwlth. 2012) (“[a]s long as the authenticating witness can provide
sufficient information relating to the preparation and maintenance of the records to justify a
presumption of trustworthiness of the business records of a company, a sufficient basis is provided
to offset the hearsay character of the evidence”).


                                                9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Health System,              :
                       Petitioner      :
                                       :
                 v.                    :   No. 886 C.D. 2019
                                       :
Unemployment Compensation Board        :
of Review,                             :
                    Respondent         :


                                    ORDER


           AND NOW, this 11th day of May, 2020, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.



                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Health System,      :
                               :
                    Petitioner :
                               :
            v.                 : No. 886 C.D. 2019
                               : Argued: February 13, 2020
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge (P.)
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


DISSENTING
OPINION BY JUDGE WOJCIK                                          FILED: May 11, 2020


              Respectfully, I dissent. The Majority errs in concluding that due to
the absence of documented drug test results, the record does not contain sufficient
evidence to demonstrate that Kitty Moriarty (Claimant) is ineligible for benefits
under Section 402(e.1) of the Unemployment Compensation Law (Law).1 To the

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e.1). Section 402(e.1) of the Law was added by Section 3 of the Act of December 9, 2002,
P.L. 1330, and became effective immediately.

       Section 402(e.1) of the Law provides that an employee is ineligible for benefits for any
week

              [i]n which his unemployment is due to discharge or temporary
              suspension from work due to failure to submit and/or pass a drug
              test conducted pursuant to an employer’s established substance
              abuse policy, provided that the drug test is not requested or
(Footnote continued on next page…)
contrary, we have repeatedly held that the introduction of drug test results is not
the only way to establish an employee’s violation of a drug policy; a claimant’s
admissions are sufficient to meet an employer’s burden of proof under Section
402(e.1) of the Law. Dillon v. Unemployment Compensation Board of Review, 68
A.3d 1054 (Pa. Cmwlth. 2013); Greer v. Unemployment Compensation Board of
Review, 4 A.3d 733 (Pa. Cmwlth. 2010); Raub v. Unemployment Compensation
Board of Review (Pa. Cmwlth., No. 1479 C.D. 2016, filed April 7, 2017);2 Direnna
v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 754 C.D.
2014, filed February 20, 2015); Consolidated Scrap Resources, Inc. v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1002 C.D. 2010,
filed December 30, 2010). For this reason, and for the additional reasons discussed
below, I would vacate the order of the Unemployment Compensation Board of
Review (Board) and remand for a decision based on the relevant evidence.


                              Facts and Procedural History
              Claimant was employed by Washington Health System (Employer) as
a licensed occupational therapist. On March 21, 2018, Claimant was asked to
submit to a random drug screen. At that time, she advised the nurse that she was
taking cannabidiol (CBD) oil to manage symptoms related to cancer and

(continued…)

              implemented in violation of the law or of a collective bargaining
              agreement.

43 P.S. §802(e.1).

       2
         Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported
opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).


                                         MHW-2
chemotherapy treatment. Employer notified Claimant that the results of the drug
screen were positive for marijuana metabolites, and Claimant was immediately
suspended for violating Employer’s drug and alcohol policy. Because the violation
followed a previous disciplinary action, Employer ultimately terminated
Claimant’s employment.
               The local job center found Claimant ineligible for benefits under
Section 402(e.1) of the Law. Claimant appealed. A referee held a hearing on May
17, 2018, at which Claimant was represented by counsel.             Katie Barron,
Employer’s human relations partner, testified for Employer.
               Barron testified that Employer has a Drug and Alcohol Free
Workplace Policy. Exhibit 10, Reproduced Record (R.R.) at 21a-26a. Barron
stated that Claimant was discharged when the results of the random drug screening
came back positive for marijuana. Employer did not submit documentation of the
test results into evidence.
               Barron said that Claimant could have offered a response or provided
additional information to Employer, but she did not. Barron added that Claimant
did request an additional test, which was conducted. R.R. at 61a.
               On cross-examination, Barron testified that under Employer’s drug
and alcohol policy, grounds for disciplinary action include being under the
influence of alcohol or drugs, or having drugs in one’s system while on
Employer’s premises or work sites. She noted that Claimant worked in the area of
patient care and said that working under the influence of drugs would pose a
significant risk to Claimant, other employees, and patients.
               Barron referenced Section F of the policy, which defines the term
“drug” as “any substance producing effects on the central nervous system . . . .”


                                      MHW-3
R.R. at 23a (emphasis added). With respect to drugs, Employer’s policy defines
the term “under the influence” as “any amount that is capable of rendering a
positive result in any drug test performed under this Policy.” Id. (emphasis added).
              Section C of the policy states in part:

              This Policy does not prohibit the legal (prescription or
              non-prescription) use of medications containing alcohol
              or the legal (prescription or non-prescription) use of
              drugs, but [Employer] requires that all Employees
              disclose to [Employer], in advance of working, when
              taking medication containing alcohol or any drug that
              poses a significant risk of substantial harm to the health
              or safety of the individual or to others, or when taking
              any medication containing alcohol or any drug that
              renders the Employee unable to perform the essential
              functions of the job. In such instances [Employer] will
              make reasonable accommodations, if appropriate. It is
              the Employee’s responsibility to consult with the
              Employee’s licensed healthcare professional to
              determine if any medication or drug requires disclosure
              under this paragraph.
R.R. at 22a (emphasis added). Barron explained that while the policy does not
prohibit the legal use of drugs or medications containing alcohol, it requires
employees to determine whether such use should be disclosed to Employer, in
advance of working.
                Claimant testified that she is a licensed occupational therapist3 and
worked for Employer for approximately three years. R.R. at 66a. Claimant was
aware that she could be tested for drugs and that she could be discharged if she had
a positive test result.


       3
          Claimant self-reported the incident to the state licensing bureau. R.R. at 11a. As a
result, she was required to attend an evaluation at Greenbriar Treatment Center, which concluded
that she did not meet the criteria for substance abuse disorder and recommended no treatment.


                                           MHW-4
                 Claimant testified that CBD oil can be purchased over the counter.
She said a doctor told her that the use of CBD oil could yield a false positive test
result, but she did not provide Employer any information from a healthcare
provider indicating that the use of CBD oil could cause a false positive result for
marijuana. R.R. at 69a.
                 The local job center determined that Claimant was ineligible for
benefits under Section 402(e.1) of the Law, and the referee affirmed the local job
center’s determination. By decision and order dated November 2, 2018, the Board
also affirmed.4
                 Claimant appealed.         By order dated April 30, 2019, this Court
granted the Board’s request for remission of the appeal. In its June 18, 2019
decision, the Board vacated its prior order and held that Claimant is not ineligible
for benefits under Section 402(e.1) of the Law. As set forth by the Majority, the
Board reasoned in part that Employer did not submit the drug test into evidence;
unlike marijuana, CBD is not a psychoactive substance, it is not a controlled
substance, and it is legal. The Board opined that “ingestion of CBD alone would
not violate a substance abuse policy.”              Board’s June 18, 2019 decision at 3
(emphasis added). Finally, the Board observed that there was no evidence in the



       4
          In its first decision, the Board found that while Employer did not enter the results of the
drug test into the record, Claimant admitted that she failed the drug test. (“It is abundantly clear
from the record that Claimant admitted to testing positive for marijuana. Importantly, [Claimant]
acknowledged in her testimony and in her documents to the department that she failed a drug test
and that she utilizes CBD, a derivative of marijuana.” Board’s November 2, 2018 decision at 2.)
The Board noted that after Employer proved its policy and the fact of Claimant’s positive drug
test, the burden shifted to Claimant to establish that the test was in violation of the law or a
collective bargaining agreement. The Board explained that Claimant’s attempt to establish good
cause or justification was inconsequential, as the same are not defenses under Section 402(e.1).


                                             MHW-5
record “as to the percentage of [tetrahydrocannabinol (THC)]” the drug screen
detected. Id. The Board’s analysis reflects multiple errors.


                                        Discussion5
              Where an employee refuses to take or fails to pass a drug test, the
employee’s discharge is properly analyzed under Section 402(e.1) of the Law
rather than Section 402(e). Dillon, 68 A.3d at 1057. To render an employee
ineligible for benefits under Section 402(e.1), an employer is required to
demonstrate that (1) it had an established substance abuse policy and (2) the
claimant violated the policy. Bowers v. Unemployment Compensation Board of
Review, 165 A.3d 49, 52 (Pa. Cmwlth. 2017); UGI Utilities, Inc. v. Unemployment
Compensation Board of Review, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). If an
employer meets its initial burden, a claimant will be rendered ineligible for benefits
unless the claimant is able to demonstrate that the employer’s substance abuse
policy is in violation of the law or a collective bargaining agreement. Bowers, 165
A.3d at 52 n.5. Notably, and in contrast to Section 402(e) of the Law, Section
402(e.1) does not permit a claimant to show good cause or justification for a
violation of the employer’s policy.
              On appeal, Employer first argues that Claimant’s admissions
constitute sufficient evidence to support a finding of a positive drug test.
              We have previously held that out-of-court statements by a claimant on
her submissions, like the “claimant questionnaire,” the “internet initial claims


       5
        Our scope of review is limited to determining whether the Board’s findings of fact are
supported by substantial evidence in the record, whether an error of law was committed, or
whether constitutional rights were violated. Greer, 4 A.3d at 736 n.4.


                                          MHW-6
form,” and the “initial interview form,” constitute party admissions that are
admissible as an exception to the hearsay rule.        Stugart v. Unemployment
Compensation Board of Review, 85 A.3d 606, 608 (Pa. Cmwlth. 2014); Dillon, 68
A.3d at 1060 (holding that the claimant’s admissions in an internet form along with
his signature on a blood alcohol testing form were competent evidence establishing
the results of his drug test). “[W]ords of a party constitute an admission and
therefore may always be used against him.” Stugart, 85 A.3d at 608 (explaining
that an admission may support a finding of fact). See also Vivas v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 1609 C.D. 2011, filed May 31,
2012) (upholding the Board’s decision crediting admissions in a questionnaire over
live testimony).
             We have observed that the probative value of an admission “depends
on its nature and the circumstance under which it was made.” Gougher v. Hansler,
130 A.2d 150, 153 (Pa. 1957); Unemployment Compensation Board of Review v.
Houp, 340 A.2d 588, 592 (Pa. Cmwlth. 1975). “[A]dmissions constitute
independent evidence of themselves and are therefore capable of independently
providing competent evidence to support the findings of the Board.” Houp, 340
A.2d at 591. Relevant here, we have held that such admissions are competent
evidence that may satisfy an employer’s burden under Section 402(e.1) of the Law.
Dillon; Greer.
             The claimant in Greer was discharged for testing positive for cocaine
in violation of the employer’s drug and alcohol policy. The claimant admitted on a
questionnaire that he failed the drug test. During his testimony, he also admitted
that he had ingested cocaine a week before the test. This Court affirmed the
Board’s decision that the claimant was ineligible for benefits under Section


                                     MHW-7
402(e.1) of the Law. In doing so, we held in Greer that introducing drug test
results into evidence “is not the sole means by which an employer can demonstrate
a claimant violated a substance abuse policy. Violation of an employer’s substance
abuse policy also can be established by a claimant’s own admission that he or she
violated the policy.” 4 A.3d at 737. In Greer, we concluded that the claimant’s
admission to failing a drug test was sufficient to support the Board’s finding that
the claimant tested positive.
             Similarly, in Consolidated Scrap Resources, Inc., we reversed the
Board’s determination that the employer failed to meet its burden to prove
ineligibility under Section 402(e.1) where the claimant’s internet claim forms
acknowledged that he failed a drug test. “We find this to be competent evidence of
ineligibility under Section 402(e.1), which requires proof only that the test was
failed, not that the claimant actually took drugs.” Consolidated Scrap Resources,
Inc., slip op. at 7 (emphasis added).
             In Raub, the claimant was denied benefits for refusing to submit to a
drug test. At the referee’s hearing, the claimant asserted that a woman was present
during the second collection of a urine sample, rendering the test in violation of
applicable regulations. However, the Board found that only a man was present
during the testing and that the claimant’s refusal to submit to the testing rendered
him ineligible for benefits under Section 402(e.1). Affirming the Board’s decision,
we noted that the Claimant Questionnaire had been admitted without objection,
and we observed that the Board was free to reject the claimant’s testimony even if
it was unrebutted. Importantly, we further noted that the “[claimant’s] testimony at
the referee hearing was rebutted by his admission in the Claimant Questionnaire
that only a male was present during the collection of the second sample.” Slip op.


                                        MHW-8
at 6-7. We explained that the claimant’s “statement in the Claimant Questionnaire
constitutes an admission that only a male was present during the second
collection[, and the] admission regarding the legality of the collection process
constitutes substantial evidence supporting the Board’s findings in this regard.” Id.
at 6-7 n.7. Summarizing, we stated that the Board was free to accept as credible
that portion of the claimant’s testimony that was corroborated by the statement in
the Claimant Questionnaire and to reject as not credible his differing and
uncorroborated testimony.
               In light of the foregoing, it is evident that the Board erred in
concluding that Employer could not meet its burden under Section 402(e.1) of the
Law without submitting the actual test results into evidence. Moreover, the record
includes Claimant’s admissions that the test result was positive.                           In the
Employment Separation Questionnaire submitted by Claimant, she specifically
stated: “The test came back positive for ‘marijuana metabolites.’” R.R. at 9a. In
Claimant’s letter to the licensing board, she likewise stated: “When the test came
back it was positive for ‘marijuana metabolites.’”                 R.R. at 11a.6         Records of

      6
          Arguably, Claimant’s testimony implicitly corroborated these written statements:

               R And did Employer notify you that you tested positive for the
               presence of marijuana?

               C Yes. Marijuana in (inaudible).

               R And what explanation, if any, do you have for that positive test
               or response?

               C The CBD oils is from what I understand, you can get it over the
               counter. You can get it at Vitamin Shoppe up here. There’s ones
               that tests [sic] positive. There’s ones that don’t. But the doctor
               that I talked to who . . . calls with the results of the test, has told
(Footnote continued on next page…)
                                             MHW-9
subsequent oral interviews reflect Claimant’s statements that she knew CBD oil
was derived from marijuana and she did not disclose her use of CBD oil to
Employer in advance of working. R.R. at 30a-31a. Pursuant to Dillon and Greer,
these statements could support a finding that Claimant’s test result was positive,
and therefore, the Board erred in failing to issue necessary findings as to their
credibility and evidentiary weight.7
               Employer’s remaining arguments also have merit. First, the Board’s
inferences and conclusions regarding the legal sale of CBD oil and the percentage
of THC in CBD oil are not supported by record evidence. More important, they
are completely irrelevant to the appropriate analysis under Section 402(e.1).
Additionally, these conclusions disregard the Board’s findings that: (1) Employer’s
policy prohibits coming to work under the influence of drugs; and (2) the policy
defines under the influence as the amount of any drug that triggers a positive test
result. I note that in Dillon, we rejected the Board’s attempt to distinguish the legal
use of alcohol from use of an illegal substance:

               [W]ith respect to the Board’s legal/illegal distinction, we
               note that physician-prescribed and over-the-counter
               pharmaceutical drugs are also legal but, like alcohol, can
               have serious negative consequences when abused or
               when used in an improper setting, such as when driving

(continued…)

               me that testing for that is insufficient. And ones that test positive
               are false positives.

R.R. at 69a.

       7
        Determinations of credibility and the weight given evidence are within the discretion of
the Board as factfinder. Spadaro v. Unemployment Compensation Board of Review, 850 A.2d
855, 860 (Pa. Cmwlth. 2004).


                                           MHW-10
             or operating heavy machinery. . . . It is precisely because
             the risks associated with substance abuse vary widely,
             depending on the nature of the industry and the job duties
             involved, that Section 402(e.1) comes into play only
             where the employer has specifically set out a substance
             abuse policy.
68 A.2d at 1058-59.
             Employer further argues, correctly, that the Board erred in considering
Claimant’s intent or knowledge of CBD oil as a defense to Section 402(e.1) of the
Law.    A claimant’s subjective beliefs are irrelevant to a determination under
Section 402(e.1), which does not provide for good cause or justification as a
defense.   Bowers, 165 A.3d at 52 n.5.          To the extent the Board considered
Claimant’s understanding “that she was ingesting a legal substance,” Board
decision at 3, the Board erred.
             Finally, Employer argues that the Board erred in considering the
regulation of marijuana and whether CBD is a controlled substance. Again, I
agree. Employer’s policy defines drug as “any substance producing effects on the
central nervous system, or any controlled substance.” R.R. at 23a (emphasis
added). That unambiguously broad definition includes legally obtained substances.
I believe Employer’s policy reflects the reality that legally obtained substances can
cause impairment.      Dillon, 68 A.3d at 1058-59.        In emphasizing the lack of
evidence that ingestion of CBD oil could or did affect Claimant’s performance,
Majority, slip op. at 4, 9, I believe the Majority also errs.
             Accordingly, for all of the above reasons, I would vacate the Board’s
order and remand for the Board to issue a new decision.



                                         MICHAEL H. WOJCIK, Judge


                                       MHW-11
