Industrial Claim Appeals Office of the State of Colorado, DD
Santo & Severn, Michael C. Santo, Emily E. Tichenor, Grand
Junction, Colorado, for Petitioner
Appearance for Respondents
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 officers decision awarding benefits to Ryan D. Holm.
M & A discharged Holm because he tested positive for
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 Panels
order and remand for further proceedings.
We derive the following information concerning Holms job
separation from the hearing officers findings.
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.
While on medical leave, Holm needed to go into M & As 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.
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").
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 employers 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 ...