( Johnston County - Robert M. Highsmith )
( Garrett )
OPINION
Appellant, Uniroyal Goodrich Tire Company (Uniroyal), conducted random drug testing of its employees. Appellee, Jason H. McCarthick, tested positive for marijuana use, and was terminated. McCarthick applied for unemployment benefits from Appellee, Oklahoma Employment Security Commission, (OESC). Benefits were awarded and Uniroyal appealed. The Appeal Tribunal affirmed OESC. The Board of Review affirmed the Appeal Tribunal. Upon appeal to the district court, the award of benefits was upheld.
The Appeal Tribunal ordered:
"No evidence was presented to show the employer used proper testing and confirmation procedures were followed. Furthermore, the employer did not present clear objective evidence that the claimant was drug impaired while at work. The on the job injuries do not constitute clear objective evidence of impairment. Therefore, the employer did not satisfy its burden of proving the claimant acted with willful disregard for the employer's interests. The claimant's actions do not constitute misconduct connected to the work."
The parties agree that Farm Fresh Dairy, Inc. v. Blackburn, 841 P.2d 1150 (Okl. 1992), is applicable to the instant appeal. The disagreement between the parties is as to its construction and application to the present case. Prior to Farm Fresh, two Divisions of the Court of Appeals had held generally, with regard to drug testing and disqualification from unemployment benefits, testing positive for drugs was not, in and of itself, sufficient to disqualify a claimant from receiving benefits. In Grace Drilling Co. v. Novotny, 811 P.2d 907 (Okl.App. 1991) (Cert. denied 1991), (criticized in Farm Fresh) the court said:
"It should also be shown that: (1) proper testing and confirmation procedures have been followed and (2) there is clear objective evidence of impairment, such as bizarre behavior or loss of productivity."
See also Independent School District No. 1 v. Logan, 789 P.2d 636 (Okl.App. 1989) (Cert. denied 1990).
Although the "clear objective evidence of impairment" requirement was eliminated by Farm Fresh, the requirement for proving that proper testing and confirmation procedures were followed, has not been eliminated. In Farm Fresh the Supreme Court held:
"We hold that where an employer shows that it fired a former employee for failing a drug test, which test was part of a program to promote safety in the employer's work place, the former employee is disqualified from receiving unemployment benefits. Such a result is particularly appropriate where, as here, passing such a test was an agreed condition of employment. Under such circumstances, the Commission may not require the employer to make any further showing, such as impairment or strange conduct on the job." (Emphasis added).
In the instant case, Uniroyal failed to present evidence of proper testing and confirmation procedures. When Uniroyal appealed to the Board of Review, it attached documents intended as proof of proper testing procedures and documentation showing Appellee failed the test. Uniroyal contends such documentation was sufficient. McCarthick contends the Board of Review could not consider such evidence because it was not before the Appeal Tribunal before its decision was rendered.
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