NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

I note the difference the DOL makes between alcoholism and drug addiction:

"A-750-2030
INDEX 1152-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January , 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
MISCONDUCT -CONTROLLED SUBSTANCE

Claimant's misconduct in connection with his employment may not be excused by dependence on a controlled substance because, unlike alcoholism, the use of such substance is subject to strict legal prohibitions against possession and sale, and the negative consequences of its use can or should be reasonably foreseen.

AB 398,533A

FINDINGS OF FACT: The claimant, an advertising account executive worked for a cable television company from March 2, 1987 until October 31, 1988. For the first 15 months of claimant's employment, the cable company found his job performance satisfactory. In May, 1988, claimant began using cocaine during his weekends off from work. Initially claimant used between one half gram to a gram each weekend. However, by June or July, 1988, claimant had graduated to daily use, and was taking from three to seven grams a day. Claimant subsequently started "free-basing" the drug for a more intense high. As a result of his cocaine use, claimant experienced long periods of sleeplessness, high blood pressure, extreme nervousness, sweating, and hallucination.

Claimant's job performance began to decline dramatically due to the effects of the drug. Claimant missed appointments with clients, failed to show at staff meetings, was frequently absent without notice, handled his business records carelessly, and failed to meet sales quotas.

On several occasions, the employer spoke to the claimant regarding his failure to perform his job satisfactorily and about his poor attendance. During these discussions, claimant blamed his difficulties on family problems, never mentioning his cocaine usage. By October 28, 1988, the employer was prepared to give the claimant a final warning because of poor work performance and attendance. Claimant was notified that a meeting was set for that day to discuss these topics. However, because he had been using cocaine heavily, and was suffering from its effects, claimant did not go to work on October 28 and did not call the employer to explain his absence. The employer thereafter discharged the claimant for his failure to attend the meeting and his overall work record.

OPINION: It is the public policy of New York State, as set forth in Title 18 of the Labor Law, that unemployment benefits be paid only to those persons "who are unemployed through no fault of their own." Labor Law, Section 501. Pursuant to this policy, Section 593 of the Law provides that a claimant will be disqualified from receiving benefits due to a loss of employment through misconduct in connection, therewith. In construing the statute, it is the task of the Appeal Board to determine whether a claimants loss of employment can be ascribed to his own acts of commission or omission in connection with his employment, which acts constitute misconduct, or should be attributed to reasons beyond the claimant's control and therefore excused.

The Appeal Board has long held that loss of employment due to failure to report to work as scheduled or failure to perform one's job duties, without compelling reason in either instance, is misconduct under the Law and will result in a claimant's disqualification from receiving unemployment insurance benefits (Matter of Goldfarb, 52 AD 2d 965, aff'g Appeal Board 212,765; Matter of Bossert, 53 AD 2d 742, aff'g Appeal Board 205,651). The Board has also held hat such misconduct can be excused where the claimant was absent due to illness which prevented his appearance at work or where a claimant was too sick to ,carry out his work assignment (Matter of Overt, 50 AD 2d 659, aff'g, Appeal Board 202,343; Matter of Sunderland, 121 AD 2d 779, aff'g Appeal Board 361,649)

In view of expert medical opinion which considers alcoholism a disease, the Board expanded this concept to include alcohol addiction as an illness which would excuse some, otherwise disqualifying acts, (Matter of Francis, 56 NY 2d 600, aff'g Appeal Board 293,620). However, while the Court has approved this approach, certain limitations have been placed upon its application. It has been expressly held by the Court that a claimant suffering from alcoholism is not incapable of committing misconduct in connection with employment (Matter of Gaiser, 82 AD 2d 629, rev'g Appeal Board 317,468). Therefore, not-all disqualifying acts would be excused as a result of the condition (e.g. illegal acts in connection with a job or other acts which, concededly legal, might foreseeably have serious negative consequences for the employer). Furthermore, a claimant alleging that he suffers from this condition must produce competent medical evidence to support his contention as well as evidence that the condition directly resulted in the act of misconduct (Matter of Moore, 144 AD2 123, aff'g Appeal Board 376,380; Matter of Allen, 162 AD 2d 753, June 14, 1990, aff'g Appeal Board 370,379.) The Courts have also mandated that any eligibility should be subject to a continuing review of claimant's capability for work (see Gaiser at 630).

Although the net result of these limitations is to more clearly define the reach of the Board's original concept, we believe our approach was and is a rational one. Although the effects of the misuse of alcohol are well documented and tragic, the mere use of this substance is not subject to widespread condemnation and, in moderation, is generally approved. The government, both state and federal, imposes few sanctions against the use, sale, and possession of alcoholic beverages; such restrictions that exist usually involve age limitations on consumption and driving while under the influence of alcohol.

In the case before us we are faced with the question of whether the Board's previously discussed rulings on alcoholism should be expanded to include drug addiction. The evidence establishes that claimant was discharged from his employment as a result of his failure to perform his job duties and, specifically, for his last absence from work on October 28, 1988. The claimant was absent that final day and had been unable to do his work consistently due to the detrimental effects of cocaine usage. The claimant contends that his omissions should be excused because they were the result of drug dependency which is an addictive illness, like alcoholism, and therefore beyond his control.

While we do not question that claimant suffers from drug addiction and that the acts which caused him to be discharged were themselves caused by the addiction, we do not agree with claimant's contention. Although we recognize some similarity between the conditions of alcoholism and drug dependency, we find significant differences in the way each condition is judged by society, and consequently, how each is, and should be viewed under New York State law. These differences affect the Board's consideration of the claimant's contention and mandate a different outcome in a case involving drug addiction than that found in our previous decisions involving alcoholism.

With respect to claimant's argument that drug dependency and alcohol addiction are essentially the same, we have already noted that the use of alcohol is largely approved, while the use, sale, and possession of non-prescription controlled substances are almost universally condemned. Vast amounts of money are appropriated on federal, state, and local governmental levels in an effort to prevent the sale and distribution of these substances because of the recognized deleterious effects across all socioeconomic levels of the country. Among the more dramatic consequences of the abuse of controlled substances are drug related deaths, crime among youth, decline in economic productivity, and dissolution of the family. While some of these effects may also be associated with alcoholism, the improper use of controlled substances is considered to pose a far more serious health hazard due to the greater likelihood of addiction and the resultant more destructive impact on society ("use in moderation" is not likely). As a result, the use of these substances is subject to stringent legal prohibitions against possession and sale. It is clear that the two conditions under review are not identical in nature or consequences. We cannot, in view of clear governmental policy deploring the abuse of controlled substances, accord the same legal consideration under the Labor Law to drug dependency as that given to alcohol addiction.

As we have determined not to extend our rulings to cases involving the improper use of controlled substances, we must determine whether claimant's acts which resulted in his discharge constituted misconduct in connection with his employment.

We consider it axiomatic that an employer has a legitimate expectation that its employees will be present during their scheduled hours of work and be capable of performing their duties as effectively as possible. In this case, the record establishes that claimant was unable to meet this expectation for reasons he contended were beyond his control. We believe that given the extensive education on the problem of drug addiction, and the many public and private sector efforts to prevent the spread of drug abuse, few people can be unaware of the perils of using a controlled substance. We believe it is reasonably foreseeable that even an occasional use of drugs such as cocaine could result in addiction and a resulting detrimental effect on every aspect of a person's life, including employment. A person who voluntarily engages in such activity, which might eventually cause a decline in attendance and work performance, must bear some responsibility for his decision. As a loss of employment under these circumstances would be due to the claimant's own act, and was a reasonably foreseeable consequence of that act, such loss of employment is considered to be for misconduct.

Accordingly, with respect to the claimant in this case, we set forth the following conclusions:

Claimant is, by his own admission, suffering from a drug addiction.

In order to become addicted, claimant had to have engaged by his own choice in the use of a controlled substance.

Claimant makes no contention that such use was in any way approved.

Claimant's acts, which caused his discharge, namely, his absence and poor job performance, were a consequence of his decision to use a controlled substance.

The personal consequences of the act of using a controlled substance were reasonably foreseeable. Claimant knew or should have known that such an act could. lead to the deterioration of his employment relationship and possible loss of job. Thus, claimant's subsequent acts or omissions with respect to his job cannot be excused by his addiction.

Under these circumstances, we conclude that claimant's course of conduct, which began with his voluntary use of cocaine and culminated in an overall decline in job performance and failure to appear for work, was not that of a reasonable and prudent person who desired to protect his employment. We find that, in view of public policy which strongly deplores this activity, claimant's conduct cannot be excused by his addiction and constituted misconduct in connection with his employment. To the extent that this decision is inconsistent with any of the Board's prior rulings, they will no longer be followed.

DECISION: The decisions of the Board filed May 24, 1989 (Appeal Board 392,989) and filed August 18, 1989 (Appeal Board 393,976A), are hereby rescinded.

The initial determination of the local office is overruled.

The employer's objection is sustained. The claimant is disqualified, from receiving benefits effective October 31, 1988 because he lost his employment through misconduct in connection therewith. Claimant is disqualified until he has worked three days in each of five weeks and earned five times his weekly benefit rate. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge is affirmed

COMMENT

An exception to this rule may arise if a claimant alleges that his/her substance dependence resulted from "involuntary" use of drugs (i.e., treatment in a hospital). In such case, evidence to support this contention should be required. In addition, evidence of claimant's efforts to cure the dependence would be necessary in light of the Appeal Board's findings regarding the consequences of drug use."