The opinion
John B. Robbins, Judge, dissenting. Mr. Cusack was informed that he was discharged for testing positive for illegal drugs and that the drug screen was conducted in accordance with the employer’s written drug policy. However, it is undisputed that the employer’s drug-free workplace policy did not mention drug testing or contain a prohibition against a positive drug screen. Had the policy contained such a provision, I would agree that Mr. Cusack’s conduct would have constituted misconduct. Because it did not, I would reverse the Board’s decision and award appropriate benefits.
In Grace Drilling Co. v. Director of Labor, 31 Ark. App. 81 , 790 S.W.2d 907 (1990), we held that where the claimant’s positive test result was sufficient to satisfy that portion of the company’s safety policy prohibiting any detectable level of drugs in the body, this constituted misconduct that disqualified him from benefits, as it represented a deliberate violation of the employer’s rules and willful and wanton disregard of the standard of behavior that the employer had a right to expect of its employee. In George’s Inc. v. Director, 50 Ark. App. 77 , 900 S.W.2d 590 (1995), we reversed an award of unemployment benefits where the claimant tested positive for illegal drugs, noting that negative drug test results were a condition of the claimant’s employment to which he agreed. In that case, we held that the employer’s drug policy, which was implemented to provide safety and production, was reasonable. And in Rucker v. Director, 52 Ark. App. 126 , 915 S.W.2d 315 (1996), we affirmed the denial of benefits where the claimant had agreed to be bound by his employer’s policy and thus was aware of its terms and the ramifications for failing a test.
The distinguishing factor between the above cases is that University of Central Arkansas did not have a written policy that covered drug testing. Such a provision would doubtless have been reasonable in light of Mr. Cusack’s employment as a driver responsible for the safety of others. But these simply are not the facts of this case. Furthermore, there is nothing in the record indicating that Mr. Cusack lost his commercial driver’s license as a result of the positive test, and there was no evidence that he was impaired during his employment hours. In the absence of a written policy supporting the employer’s decision to terminate appellant’s employment, I would hold that the Board erred in finding that appellant’s actions constituted misconduct in connection with his work.
I respectfully dissent.
Hart, J., joins.