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M & A Acquisition Corp. v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Seventh Division

November 21, 2019

M & A Acquisition Corp./West Star Aviation, Inc., Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Ryan D. Holm, Respondents.

          Industrial Claim Appeals Office of the State of Colorado DD No. 48631-2018

          Bechtel Santo & Severn, Michael C. Santo, Emily E. Tichenor, Grand Junction, Colorado, for Petitioner

          No Appearance for Respondents

          OPINION

          TOW, JUDGE.

          ¶ 1 In this unemployment compensation benefits case, M & A Acquisition Corp. seeks review of a final order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer's decision awarding benefits to Ryan D. Holm. M & A discharged Holm because he tested positive for marijuana.

         ¶ 2 M & A contends that the Panel erred by limiting its analysis to a single disqualifying subsection of the statute, section 8-73-108(5)(e)(IX.5), C.R.S. 2019, and by expressly declining to consider other potentially applicable disqualifying subsections. We agree and therefore set aside the Panel's order and remand for further proceedings.

         I. Background

         ¶ 3 We derive the following information concerning Holm's job separation from the hearing officer's findings.

         ¶ 4 Holm worked for M & A as a full-time aircraft mechanic. He was injured at work in February 2017. Although he returned to work for a few days in April and May 2017, he was eventually placed on a medical leave of absence on May 30, 2017.

         ¶ 5 While on medical leave, Holm needed to go into M & A's office every other week to make payments on a loan against his retirement account. In November 2017, while Holm was in the office making a loan payment, a person in human resources notified him that his name had been pulled for a random drug test. M & A had a written policy requiring employees to submit to random drug tests if their names came up for such testing. Holm was aware of this policy. Holm tested positive for marijuana, and M & A thereafter discharged him based on the test result.

         ¶ 6 The hearing officer found that Holm was still an M & A employee and therefore subject to the drug testing policy but was not working when he was tested. The hearing officer determined that because Holm had been on a leave of absence since May 30, 2017, and had not performed work for M & A since that date, he was not at fault for the job separation. Consequently, the hearing officer awarded Holm benefits on a no-fault basis. See § 8-73-108(1)(a) (setting forth the guiding legislative principle that "unemployment insurance is for the benefit of persons unemployed through no fault of their own").

         ¶ 7 M & A appealed the decision to the Panel, arguing that Holm was disqualified from receiving benefits under three statutory provisions: (1) "[v]iolation of a statute or of a company rule which resulted or could have resulted in serious damage to the employer's property or interests"; (2) "[o]ff-the-job use of not medically prescribed intoxicating beverages or controlled substances . . . to a degree resulting in interference with job performance"; and (3) "failure to meet established job performance or other defined standards." § 8-73-108(5)(e)(VII), (VIII), (XX).

         ¶ 8 On review, the Panel affirmed the hearing officer's decision but applied a different rationale. It concluded that "when an individual is separated from employment due to a positive drug test administered pursuant to the employer's drug policy, the provisions of [section] 8-73-108(5)(e)(IX.5), C.R.S. are exclusive" and disqualification "is not warranted under one of the more general disqualification provisions." Hence, the Panel declined to consider whether the three other possible disqualifying subsections urged by M & A applied.

         ¶ 9 Because marijuana was not present in Holm's system "during working hours" as required by subsection (IX.5), the Panel concluded that he was not disqualified from receiving benefits under that subsection. Based on its conclusion that subsection (IX.5) was the only potentially applicable disqualifying subsection, the Panel reasoned that since its ...


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