Industrial Claim Appeals Office of the State of Colorado DD
Bechtel Santo & Severn, Michael C. Santo, Emily E.
Tichenor, Grand Junction, Colorado, for Petitioner
Appearance for Respondents
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
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.
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,
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 ...