NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

Clearly, the DOL is distinguishing between alcoholism and drug addiction resulting from illegal substances.

"A-750-2071
Index No. 1110-19
1125-12
1152-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 1996

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Absence and Lateness
Alcohol
Drugs
DRUGS & ALCOHOL

Unsatisfactory attendance is not excused by claimant’s addictions to both a controlled substance and alcohol. Because the controlled substance is illegal, the claimant’s alcoholism should not be considered in determining the reason for separation.

AB 445,500

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective September 19, 1994. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated November 23, 1994 the Administrative Law Judge sustained the initial determination.

The employer appealed the judge’s decision to the Board.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a probationary quality control technician from June 6, 1994 to August 17, 1994. The claimant had been warned several times about his tardiness, the last time being July 14, 1994. The claimant did not report to work after August 17, 1994, due to his addiction to alcohol and cocaine. He sought treatment for his condition. He entered a residential treatment program on August 18, 1994. He was discharged from his position because of his unsatisfactory attendance while on probation.

OPINION: The credible evidence establishes that the claimant lost his employment as a result of his unsatisfactory attendance. His last absence was caused at least in part by his use of cocaine, which is in violation of the law. The claimant admitted this at the hearing. In Matter of Kuehn, 174 AD 2d 776, aff’g Appeal Board No. 398,533A, the Court affirmed a decision of the Board which observed significant difference in the way alcoholism and drug addiction are judged by society and, consequently, how each is and should be viewed under New York State law. As procurement, possession, and use of a controlled substance constitutes criminal activity, the negative consequences of which can be reasonably foreseen, the claimant must bear the responsibility for his last absence.

The employer had a legitimate expectation that its employee would be present during scheduled hours of work. This record establishes that the claimant, while on probation and already having been warned about tardiness, was unable to meet this expectation due to his use of cocaine and alcohol. We will not, in the face of the claimant’s admission to use of cocaine, apportion the reason for his last absence between use of alcohol and use of cocaine where there is evidence of both. So long as his course of conduct, culminating in his failure to report for work, is clearly attributable to voluntary use of cocaine, we find that he lost his employment through misconduct in connection therewith. The claimant should, therefore, be disqualified from receiving benefits. The disqualification is effective August 18, 1994.

DECISION: The initial determination of the local office is overruled.

The decision of the Administrative Law Judge is reversed."