Bibolet v. Emp't Dep't

288 Or.App. 489

407 P.3d 831

Eric BIBOLET, Petitioner,

v.EMPLOYMENT DEPARTMENT and Comcast Cable Holding, LLC, Respondents.

A154522

Court of Appeals of Oregon.

Argued and submitted April 13, 2015.

November 1, 2017

Michael E. Rose, Portland, argued the cause and filed the brief for petitioner.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent Employment Department. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

No appearance for respondent Comcast Cable Holding, LLC.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.^*

ARMSTRONG, P. J.

After claimant was involved in a motor-vehicle accident at work, claimant's employer required him to submit to a drug test in accordance with employer's written drug policy for its employees. The test revealed that claimant had marijuana metabolites in his body in a concentration greater than allowed under employer's policy, leading employer to terminate claimant's employment with it. Claimant sought unemployment compensation benefits, which the Employment Department denied on the ground that claimant's failure on employer's drug test was a "disqualifying act" for purposes of determining claimant's eligibility for unemployment benefits. See ORS 657.176(2)(h), (9)(a)(F). The Employment Appeals Board (EAB) ultimately affirmed the department's denial. Claimant seeks judicial review of EAB's order, raising three assignments of error that, in various ways, challenge the employer's drug-testing policy as not meeting the legal requirements that would make claimant's failed drug test a disqualifying act for purposes of claimant's eligibility to receive unemployment benefits.

First, claimant contends that employer's drug policy was unreasonable because it regulated off-duty conduct. Second, he contends that employer's policy of drug testing all employees who were involved in work-related motor-vehicle accidents does not qualify as a "blanket" test under the state administrative rules that govern employer drug policies. See OAR 471-030-0125(3)(d) (a drug policy that includes drug testing must either require probable cause before testing or provide for "random, blanket, or periodic testing"). Finally, claimant contends that, because there was no evidence that he was impaired at work as a result of his ingestion of marijuana, the EAB erred in concluding that his failed drug test had occurred "in connection with employment," as contemplated by ORS 657.176(9)(a)(F). The department responds that claimant's first and third assignments of error are not preserved and are not subject to review as plain error. As to the second assignment, the department contends that a drug test administered to every employee involved in a work-related motor-vehicle accident qualifies as a "blanket" drug test. We agree with the department on each point. Accordingly, we affirm the EAB's order.

Before we turn to the facts, we briefly outline the applicable statutory and regulatory framework. An individual becomes temporarily ineligible for unemployment benefits if the worker commits a disqualifying act. See ORS 657.176(2). Conduct that causes an employee to "test[ ] positive for alcohol, cannabis or an unlawful drug in connection with employment" can constitute a disqualifying act.¹ ORS 657.176(2)(h), (9)(a)(F). Such a test, according to the department's rules, must be administered in accordance with a reasonable written policy. OAR 471-030-0125(2)(e) provides:

"For purposes of ORS 657.176(9)(a)(F), an individual ‘tests positive’ for alcohol or an unlawful drug when the test is administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, and at the time of the test:

"(A) The amount of drugs or alcohol determined to be present in the individual's system equals or exceeds the amount prescribed by such policy or agreement; or

"(B) The individual has any detectable level of drugs or alcohol present in the individual's system if the policy or agreement does not specify a cut off level."

(Emphasis added.) The rule further sets out four requirements for a written policy to qualify as "reasonable":

"For purposes of ORS 657.176(9)(a), (10), and 657.176(13)(d), a written employer policy is reasonable if:

"(a) The policy prohibits the use, sale, possession, or effects of drugs or alcohol in the workplace; and

"(b) The employer follows its policy; and"(c) The policy has been published and communicated to the individual or provided to the individual in writing; and

"(d) When the policy provides for drug or alcohol testing, the employer has:

"(A) Probable cause for requiring the individual to submit to the test; or

"(B) The policy provides for random, blanket or periodic testing."

OAR 471-030-0125(3) (emphases added).

Finally, the rules provide two relevant definitions. First, the rules define "in connection with employment," as used in ORS 657.176(9)(a)(F), as a positive drug test that "affects or has a reasonable likelihood of affecting the employee's work or the employer's interest and/or workplace." OAR 471-030-0125(2)(h). Second, the rules define "blanket test" as "a test for drugs and/or alcohol applied uniformly to a specified group or class of employees." OAR 471-030-0125 (5)(c).

With that in mind, we turn to the facts, which, for purposes of our review, are undisputed. Employer has a written drug policy, which provided:

"[Employer] prohibits the use, possession, sale, purchase, manufacture, distribution, dispensation or transfer of drugs that are illegal under federal, state or local laws by any employee while both on-duty and off-duty. This policy also prohibits an employee from working under the influence of illegal drugs to any extent. Illegal drugs include, but are not limited to, controlled substances such as marijuana, cocaine and heroin.

" * * * * *

"In order to ensure compliance with this Policy, [employer] may require employees * * * to undergo drug and/or alcohol testing under the following circumstances (when permitted by applicable law): * * * Post-vehicular accident."

(Emphasis added.) The policy also included screening levels for the drug tests, which provided the basis for employer to terminate an affected employee's employment.

Claimant was driving employer's truck at work when another driver backed into the employer's truck in a parking lot. Employer required claimant to take a drug test after the accident, based on its policy of administering drug tests to employees who are involved in work-related vehicular accidents, regardless of fault. The test revealed marijuana metabolites in a concentration greater than allowed by employer's policy on drug use; accordingly, employer terminated claimant's employment. There is no evidence in the record that claimant was impaired by marijuana at the time of the accident.

Claimant applied for unemployment benefits, but the department denied claimant's application on the ground that his failure on the employer-administered drug test was a disqualifying act. See ORS 657.176(2)(h), (9)(a)(F). Claimant appealed the denial to an administrative law judge (ALJ). Before the ALJ, claimant's arguments focused on whether he had, in fact, smoked marijuana himself or whether his proximity to people at a party who were smoking marijuana explained his positive drug test. Claimant submitted no written argument to the ALJ and made no opening or closing statements. His sole legal arguments focused on the admissibility of certain evidence, and the admission of that evidence has not been challenged by claimant on judicial review. The ALJ concluded—based on an argument not advanced by claimant—that claimant was entitled to unemployment benefits because the drug test administered to claimant was not a "blanket" drug test, as defined in OAR 471-030-0125(5)(c). The ALJ reasoned:

"A colorable argument could be made that a post-vehicular [accident] drug test is one given to ‘a specified group or class of employees,’ that is, all employees involved in motor vehicle accidents. The ALJ is unaware of any statute or rule or case law that would allow for such an interpretation and, in the absence of any such legal authority, the ALJ declines under the facts of this particular case to interpret the term ‘blanket’ drug test in such a broad or novel fashion."

In essence, the ALJ concluded that a drug test administered to every employee who is involved in a work-related vehicular accident was not a test applied to "a specified group or class of employees," and, thus, the test did not constitute a "blanket test." Accordingly, the ALJ held that claimant's failure on the test was not a disqualifying act, and claimant was entitled to unemployment benefits.

Employer appealed to the EAB. Neither claimant nor the department submitted written briefing before the EAB, although they had the opportunity to do that. See OAR 471-041-0080(1) (allowing parties to submit written arguments to the EAB). The EAB reversed the ALJ, concluding that employer's policy of drug testing all employees involved in work-related vehicular accidents did qualify as a "blanket" drug test under OAR 471-030-0125(3), and, accordingly, claimant was disqualified under ORS 657.176(9)(a)(F) from receiving unemployment benefits. Claimant seeks judicial review of the EAB's order.

We begin with claimant's first and third assignments of error on review, which, as noted, the department contends we should not reach because they are unpreserved and do not qualify for plain-error review. ORAP 5.45(1) provides that "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court." That rule applies to judicial review of agency action. See, e.g., Marella v. Employment Dept., 223 Or. App. 121, 126, 194 P.3d 849 (2008), rev. den., 346 Or. 65, 204 P.3d 95 (2009) ("An issue must first be raised to the EAB before we will consider it on review."). "In order to...