Unemployment Insurance

Web Library Topic - Drug and Alcohol Use

Off-the-Job Use

On-the-Job Use

Presence in System During Working Hours

Addiction

Failure to Complete a Rehabilitation Program

Off-the-Job Use

Statute

§ 8‑73‑108(5)(e)(VIII), C.R.S. 2005

(5)(e) Subject to the maximum reduction consistent with federal law, and insofar as consistent with interstate agreements, if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103 (13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:

(VIII) Off-the-job use of not medically prescribed intoxicating beverages or controlled substances, as defined in section 12-22-303 (7), C.R.S., to a degree resulting in interference with job performance.

Case

Safeway Stores Inc. v. Industrial Claim Appeals Office, 754 P.2d 773 (Colo. App. 1988)

A claimant's consumption of alcohol off-the-job does not automatically disqualify the claimant from unemployment benefits, and whether the off-the-job consumption of alcohol affected the claimant's job performance is a matter of fact to be determined by the hearing officer.  Further, the results of a blood-alcohol test does not create an evidentiary presumption, but is rather only one evidentiary factor to be considered. 

On-the-Job Use

Statute

§ 8‑73‑108(5)(e)(IX), C.R.S. 2005

(5)(e) Subject to the maximum reduction consistent with federal law, and insofar as consistent with interstate agreements, if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103 (13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:

(IX) On-the-job use of or distribution of not medically prescribed intoxicating beverages or controlled substances, as defined in section 12-22-303 (7), C.R.S.

Case

Longmont Turkey Processors, Inc. v. Industrial Claim Appeals Office, 765 P.2d 1073 (Colo. App. 1988)

A claimant who consumed alcohol on a paid rest break was considered to have consumed alcohol "on-the-job," and as such was disqualified from the receipt of unemployment benefits under § 8‑73‑108(5)(e)(IX).

Presence in System During Working Hours

Statute

§ 8‑73‑108(5)(e)(IX.5), C.R.S. 2005

(5)(e) Subject to the maximum reduction consistent with federal law, and insofar as consistent with interstate agreements, if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103 (13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:

(IX.5) The presence in an individual's system, during working hours, of not medically prescribed controlled substances, as defined in section 12-22-303 (7), C.R.S., or of a blood alcohol level at or above 0.04 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a drug or alcohol test administered pursuant to a statutory or regulatory requirement or a previously established, written drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests.

Cases

The ICAO is unaware of any published Colorado court cases that specifically address this statute.

Addiction

Statutes

§ 8‑73‑108(4)(b)(IV), C.R.S. 2005

The off-the-job or on-the-job use of not medically prescribed intoxicating beverages or controlled substances, as defined in section 12-22-303 (7), C.R.S., may be reason for a determination for a full award pursuant to this paragraph (b), but only if:

(A) The worker has declared to the division that he or she is addicted to intoxicating beverages or controlled substances;

(B) The worker has substantiated the addiction by a competent written medical statement issued by a physician licensed to practice medicine pursuant to article 36 of title 12, C.R.S., or has substantiated the successful completion of, or ongoing participation in, a treatment program as described in sub-subparagraph (C) of this subparagraph (IV) within four weeks of the claimant's admission. Such substantiation shall be in writing to the division and signed by an authorized representative of the approved treatment program.

(C) A worker who is not affiliated with an approved treatment program must present to the division within four weeks after the date of the medical statement referred to in sub-subparagraph (B) of this subparagraph (IV), substantiation of registration in a program of corrective action that will commence within four weeks after the date of the medical statement and that is provided by an approved private treatment facility or an approved public treatment facility as defined in section 25-1-302 (2) or (3), C.R.S., or by an alcoholics anonymous program. Such substantiation shall be in writing to the division and signed by an authorized representative of the approved treatment program.

(D) The division certifies and notifies the employer and the hearing officer that no prior award under the provisions of this subparagraph (IV) has been made to the worker within the preceding ten years.

§ 8‑73‑108(4)(b)(IV.5), C.R.S. 2005

Any benefits awarded to the claimant under the provisions of subparagraph (IV) of this paragraph (b) and normally chargeable to the employer will be charged to the fund.

Cases

City and County of Denver v. Industrial Commission, 756 P.2d 373 (Colo. 1988)

Alcoholism or is not inherently nonvolitional, and that conduct induced by alcoholism may or may not be voluntary, depending on whether the claimant had the ability to exercise control over his or her actions.  Moreover, the claimant is required to make a prima facie showing that his or her behavior directly resulted from alcoholism that was for the claimant nonvolitional.

Fowler v. Carder Inc., 849 P.2d 917 (Colo. App. 1993)

A declaration by the claimant that he was addicted to alcohol was one of the requirements of § 8‑73‑108(4)(b)(IV), but was not enough to satisfy part (B) of the statute, the substantiation requirement.  Further, as the claimant did not provide substantiation of his claim of being an alcoholic, and denied that he was being treated for his alcoholism, he did not have four weeks within which to present proof of a treatment plan under part (C).

Failure to Complete a Rehabilitation Program

Statutes

§ 8‑73‑108(4)(b)(V), C.R.S. 2005

A potentially chargeable employer may notify the division concerning the failure of the worker to participate in or complete an approved program of corrective action to deal with the addiction within fifteen calendar days after the date on which he discovers such a condition to exist. The worker shall be given an opportunity to respond to the employer's allegations. The division, upon review of additional information, may modify a prior decision pursuant to subparagraph (XXIV) of paragraph (e) of subsection (5) of this section.

§ 8‑73‑108(5)(e)(XXIV), C.R.S. 2005

(5)(e) Subject to the maximum reduction consistent with federal law, and insofar as consistent with interstate agreements, if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103 (13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:

(XXIV) Failure to participate in or failure to complete an approved program of corrective action to deal with an addiction pursuant to subparagraph (IV) of paragraph (b) of subsection (4) of this section. The determination of whether or not an individual has failed to participate in or complete an approved program of corrective action to deal with an addiction shall be the responsibility of the division. In making such a decision, the division may consider extenuating circumstances for the individual's failure to participate in or complete the approved program of corrective action which would justify a decision not to disqualify the individual from receiving benefits, but only if the individual presents a program of corrective action in accordance with sub-subparagraph (C) of subparagraph (IV) of paragraph (b) of subsection (4) of this section. The only extenuating circumstances which may be considered by the division shall be whether the individual suffered an illness not related to the addiction or received incapacitating injuries in an accident or whether the death of an immediate family member of the individual occurred which contributed to the failure of the individual to participate in or complete the program of corrective action. The burden of proof that an extenuating circumstance existed lies with the claimant.

Cases

The ICAO is unaware of any published Colorado court cases that specifically address this issue.

Back to Top  |  Library Index  |  ICAO Home Page  |  CDLE Home Page