          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith M. Rinehimer,                       :
                 Petitioner               :
                                          :
             v.                           : No. 533 C.D. 2015
                                          : Submitted: August 28, 2015
Unemployment Compensation                 :
Board of Review,                          :
                 Respondent               :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                       FILED: September 18, 2015


             Keith M. Rinehimer (Claimant) petitions pro se for review of an order
of the Unemployment Compensation Board of Review (Board) finding him
ineligible for unemployment compensation (UC) benefits under Section 402(e.1)
of the Unemployment Compensation Law (Law)1 because his termination from

      1
       Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of
December 9, 2002, P.L. 1330, 43 P.S. §802(e.1). Section 402(e.1) provides:

             An employe shall be ineligible for compensation for any week--

                                        *    *   *

                   (e.1) In which his unemployment is due to discharge or
             temporary suspension from work due to failure to submit and/or
(Footnote continued on next page…)
employment with Craft Oil Corporation (Employer) was due to his failure to pass
an alcohol test conducted pursuant to Employer’s drug alcohol policy. Finding no
error in the Board’s decision, we affirm.


              Claimant was employed as a full-time service technician for
Employer. He was selected for random drug testing under Employer’s established
drug and alcohol policy, of which Claimant was aware, providing for random
testing. Claimant’s drug test result was negative, but the alcohol test result was
positive so he was given a breathalyzer for the alcohol test, which showed a blood
alcohol content (BAC) of .045. Claimant was administered a second breathalyzer
within approximately 15 minutes of the first one, the result of which was a BAC of
.039. Pursuant to the Employer’s policy, a BAC of .02 or greater is considered
under the influence and reporting to work under the influence is a violation of the
policy which can lead to disciplinary action up to, and including, discharge.2
Claimant was immediately suspended following his second breathalyzer result and
discharged after a review by human resources.

(continued…)

              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
              agreement.

No allegation is made here that the test was in violation of the law or a collective bargaining
agreement.

       2
           The Referee’s Findings of Fact states that, “All prior incidences involving employees
who had a breath value of .02 or greater resulted in the [employee] being discharged.” (R. Item
9, at 1, Finding of Fact No. 11.)




                                               2
             Following his separation from Employer, Claimant filed an
application for UC benefits. The Scranton Unemployment Compensation Service
Center (Service Center) found Claimant ineligible for benefits because he failed a
drug and alcohol test conducted under an established drug and alcohol policy.
Claimant appealed the Service Center’s determination.


             Before the Referee, Claimant testified that he had had a couple of
drinks the night before the drug and alcohol test and did not realize that he had not
taken his insulin until after the test. He explained that due to his failure to take his
insulin after drinking, his pancreas did not process the sugars from the alcohol and
the alcohol remained in his system. Claimant admitted that he possessed and was
aware of the drug and alcohol policy.


             Claimant also submitted into evidence information about diabetes and
medication and drug interaction from www.talkingalcohol.com, and a letter from
his primary care physician confirming that Claimant is a Type 1 diabetic and
requires insulin therapy.


             Jean McGinty, Employer’s Director of Human Resources, testified
that because Claimant’s BAC was almost double the level provided in the policy,
Claimant was discharged per Employer’s policy of discharging employees who
failed a drug or alcohol test. Ms. McGinty testified that although she was unaware
of the effect of Claimant’s diabetes on the breathalyzer test, she would have likely
taken that information and given it to a medical review officer to review, but that
Claimant would definitely be disciplined as his BAC was nearly double what



                                           3
Employer allows in its policy.3 She also testified that Claimant was aware of
Employer’s drug and alcohol policy because the policy is included in Employer’s
“employee handbook as well as given to employees on hire.” (R. Item 8, at 3.)


                Finding that Claimant was aware of Employer’s drug and alcohol
policy, the Referee found Claimant ineligible for UC benefits because he reported
to work under the influence of alcohol as that term is defined in Employer’s policy.

       3
           Jean McGinty testified the following:

                R: Okay. So we’ll mark that as Employer Exhibit 1. Ms.
                McGinty, I don’t know if you’ll be able to answer this or not, but
                I’ll ask it. [I]f -- had you known the circumstances regarding him -
                - the insulin and received that information, do you think that he --
                do you know if he would’ve been discharged or received some
                other type of discipline or not received any discipline at all or -- I
                don’t know if you’d be able to answer that. Like, if you brought
                back that…

                EW: I really don’t. Probably, what I would do is take the
                information and give it to a third party to review and see if those
                levels are consistent with what was provided.

                R: Okay. Like the medical review officer…

                EW: Um-hum.

                R: … you would give it and see…

                EW: But there would definitely be disciplinary action, absolutely.

                R: Okay.

                EW: I mean, it’s more than double what we allow in the policy.

(R. Item 8, at 12.)




                                                   4
The Referee further found that Claimant could only “surmise” that his failure to
take his insulin the night before the test resulted in the reduced alcohol
metabolization as there was no documented medical explanation for the results of
the test. Claimant appealed to the Board which affirmed.4 This appeal followed.5


              On appeal, Claimant again contends that his positive alcohol test was
a result of his failure to take his insulin the night before the test was administered.
Under Section 402(e.1) of the Law, all that an employer must prove is that it
maintained a substance abuse policy, which the claimant violated.                   Greer v.
Unemployment Compensation Board of Review, 4 A.3d 733, 736 (Pa. Cmwlth.
2010). Once the employer satisfies its burden, the claimant will be ineligible for
benefits unless he can establish that the test results were inaccurate or that
employer’s substance abuse policy violates the law or collective bargaining
agreement, none of which is alleged here. Id.


              Here, Employer had an established drug and alcohol policy which
applied to “all associates[6]… on or off premises, including on-call associates.” (R.
Item 8, at E-1.) Claimant was aware of the policy. The policy provides that


       4
         In affirming the Referee’s decision, the Board adopted and incorporated the Referee’s
findings and conclusions.

       5
         Our scope of review of the Board’s decision is limited to determining whether an error
of law was committed, constitutional rights were violated, or whether the necessary findings of
fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of
Review, 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 2010).

       6
         Associates include “[any] person who performs a service or services for the [Employer]
in exchange for compensation.” (R. Item 8, at E-1.)



                                              5
Employer may require associates to submit to drug and alcohol testing as part of a
random testing program.       Associates who violate the policy are subject to
disciplinary action up to and including termination.          An associate will be
considered in violation of the policy when he or she “report[s] to work under the
influence of illegal drugs or alcohol.” Id. “Under the influence” of alcohol is a
confirmed BAC of .02 or greater. Claimant was randomly tested pursuant to the
policy and his BAC was above the limit set by the policy. Based on this evidence,
Employer met its burden of proof.


             Next, Claimant argues that his failure to take his insulin resulted in his
high BAC levels. While Claimant’s primary care physician confirmed his Type 1
diabetes diagnosis and his need to take insulin for it, the physician made no
mention of insulin’s effect on alcohol metabolism. The Board correctly held that
other than Claimant’s assertions, we have no evidence to establish that Claimant’s
failure to take his insulin is indeed the reason for his high BAC levels and
subsequent violation of Employer’s policy. Moreover, even if he established that
his blood alcohol levels were the result of his failure to take insulin does not
obviate the fact that his BAC still violated Employer’s policy.


             As to Claimant’s contention that he did not sign Employer’s drug and
alcohol policy and, thus, cannot be held to it, this Court has held that even when a
claimant does not sign a policy/plan, if said claimant is aware of the policy/plan,
then he or she must be accountable to it. Doyle v. Unemployment Compensation
Board of Review, 58 A.3d 1288, 1290-91 (Pa. Cmwlth. 2013).




                                          6
Accordingly, the order of the Board is affirmed.



                         ____________________________________
                         DAN PELLEGRINI, President Judge




                            7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith M. Rinehimer,              :
                 Petitioner      :
                                 :
            v.                   : No. 533 C.D. 2015
                                 :
Unemployment Compensation        :
Board of Review,                 :
                 Respondent      :




                               ORDER


            AND NOW, this 18th day of September, 2015, the order of the
Unemployment Compensation Board of Review dated February 20, 2015, at No.
B-575346, is affirmed.



                                 ____________________________________
                                 DAN PELLEGRINI, President Judge
