Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued
IX. Attendance Problems
Persistent or chronic absenteeism, where the absences are
without notice or excuse and continue in the face of warnings
constitutes gross misconduct. Whether an employer may be
able to have the absent employee's duties performed by others
is not relevant to the misconduct determination. Watkins
v. Employment Security Administration, 266 Md. 223, 292 A.2d 653 (1972).
However, an employee's violation of the employer's attendance policy
does not automatically result in a finding of misconduct.
If the employee is absent for a compelling reason, such
as illness, the absence will be considered excused, even
if it is counted as unexcused according to the employer's
policy. Factors considered in determining whether or not
there is misconduct include the number of absences or
latenesses, the employer's policy, whether the claimant
had a good reason for the absenteeism or lateness, whether
the claimant properly notified the employer on each occasion
and whether the claimant had been previously warned about
Employees who miss a lot of time from work, even for excused reasons,
have a "heightened duty" not to miss additional time for
unexcused reasons and to conform to the employer's notice requirements.
The claimant was discharged by the employer for chronic poor attendance
and lateness. The event which culminated in the claimant's
discharge was a lateness attributed to his sister being
in the hospital and his having to wait with his sister's
children until a babysitter arrived. He was approximately
40 minutes late for work. The claimant had many prior
incidents of lateness and absenteeism about which he had
been warned. The Board found that, although the claimant's
last lateness was for good reason, a finding of gross
misconduct is supported where the claimant was discharged
for a long record of absenteeism without excuse or notice
which persisted after warnings. McNeill v. Nash Finch
Company, 01616-BH-97 (1997).
Absenteeism due to incarceration is generally held to be gross misconduct.
However, if the charges which brought about the incarceration
were dropped or dismissed or the claimant was found to
be not guilty, there may not be a penalty, provided the
claimant gave the employer proper notice of the absence.
A. Absenteeism and Lateness
1. In General
A violation of an employer's attendance policy is not misconduct
per se where that policy does not distinguish between absences
which occurred because of legitimate medical reasons and
absences for which there was no reasonable excuse. However,
where an employee has been absent for a day of scheduled
work, the burden of proof shifts to the employee to explain
the reason for the absence. Leonard v. St. Agnes Hospital, 62-BR-86.
The claimant's discharge was for simple, but not gross, misconduct where
the majority of his absences were excused by the employer.
Francis v. Dover Poultry, Inc., 327-BR-86.
The claimant was deliberately five hours late for work because he needed
rest. He also failed to notify the employer of his lateness.
He had received previous warnings about attendance. This
was gross misconduct. Thompson v. Chesapeake Paperboard
The claimant failed to report to work or notify the employer of his
absence for three consecutive scheduled work days. There
was no indication that the claimant was so seriously ill
that he could not call the employer during this time.
This was gross misconduct. Rhodes v. Mullan Enterprises,
2. Chronic or Repeated
The claimant's lateness continued despite warnings and
the claimant was absent twice without notice. A specific
warning regarding termination is not required and a reasonable
person should realize that such conduct leads to discharge.
This was gross misconduct. Freyman v. Laurel Toyota, Inc., 608-BR-87.
Where the claimant was late only two times in one and one-half years
and warned after the first time, forgiven and then discharged
after the second time, there was no gross misconduct,
but only simple misconduct. May v. Rudy's Patisserie, Inc., 639-BH-87.
Even though a claimant's last absence was with good reason, a finding
of gross misconduct is supported where the claimant was
discharged for a long record of absenteeism without valid
excuse or notice, which persisted after warnings.
Hamel v. Coldwater Seafood Corporation, 1227-BR-93.
The fact that an employer is a temporary employment agency and
that the claimant's pattern of unexcused absences involved
different placements, does not render the entire attendance
record irrelevant. The claimant's record, taken as a whole,
supports the conclusion that the claimant's discharge
was for gross misconduct. Banks v. Staffmax Corporation,
Inc., 966-BR-01 (2001).
3. Failure to Notify Employer
The claimant's absences and failure to notify the employer
were due to the extreme trauma of the claimant's daughter's
terminal illness. This was misconduct, but not gross misconduct.
Gordon v. Liberty Medical Center, Inc., 800-BH-87.
The employer's policy, of which the claimant should have been aware,
provided that an employee who neither reported to work
nor called for three consecutive days would be terminated.
The claimant failed to report to work or call in for four
consecutive days. The record shows no excuse other than
his written statement that he had a hangover. This was
gross misconduct. Hardin v. Broadway Services, Inc., 146-BR-89.
The claimant, without authorization, did not report to work for four
successive scheduled work days. The employer's policy
states that three consecutive absences without notification
constitutes job abandonment. The claimant's repeated absences
without notification were a deliberate violation of the
employer's attendance policy and rise to the level of
gross misconduct. King v. Wicomico County, Maryland, 4027-BR-94.
On a Friday, the claimant left work early due to illness. She was scheduled
to report to work the following Monday and Tuesday, but
failed to report and failed to notify the employer of
her absence. The claimant had received a previous warning
about this and was specifically told to call if she was
going to be absent. The claimant was discharged for gross
misconduct. Bost v. Saturn Corporation, 643-BH-90.
The claimant was chronically late and absent and on numerous occasions
failed to call in or had someone else call in for her.
This violated the employer's rule that unless an employee
could not call in, that employee must call in personally.
Although the claimant may have had severe personal reasons
for her continuing absence and lateness, she did not contact
the employer in the appropriate manner or contact the
employer at all to notify her supervisor of her absence
or lateness. This continued after warnings. The claimant
refused the employer's offer of a two-week leave of absence
so that she could get her personal life in order. The
discharge was for gross misconduct. Hall v. Johns
Hopkins Hospital, 694-BH-91.
When a claimant, in the face of warning, did not properly justify
his final absence with a required doctor's note, he was
terminated for actions which evince a total disregard
for the standard of behavior that the employer had a right
to expect and, thus constitutes gross misconduct. In its
decision, the Board stated "When an employee does not
report or call into work, a single incident may only constitute
simple misconduct. However, the Board views as a grave
matter incidents where an employee violates the employer's
attendance policies on more than one recent occasion by
not calling or reporting into work." Beard v. C.T.
Management, 02061-BR-97 (1997).
4. Effect of Warnings
The claimant missed an enormous amount of time from work
due to his injury and illness. This was excused and is
not misconduct. But the claimant also missed a large amount
of additional time and for many of these absences, he
failed to provide his employer medical documentation or
call in according to company procedures. He was told several
times to do this, but he ignored these warnings. This
was gross misconduct. Saylor v. White Rose Paper Company, Inc., 620-BR-91.
Verbal "reminders" given on each occasion of lateness are the equivalent
of warnings. Borbor v. L and B Corporation, 588-BR-92.
1. In General
Where the student claimant was originally told that it was
permissible to miss time from work in order to go on interviews
for permanent work and then was fired for doing so, there
was no misconduct. Joiner v. Santoni's Market, Inc., 466-BH-89.
The claimant had a compelling personal reason to be absent and also
provided documentary evidence of the excuse. However,
she was late four times without excuse after repeated
counseling about lateness. The claimant's reason for lateness
was not compelling. The claimant was discharged for misconduct.
Martin v. Tabs Associates, Inc., 785-BR-91.
2. Illness and Disability
The claimant was absent from work on an authorized maternity
leave. Due to unexpected medical complications, the claimant
was not able to return to work as early as anticipated.
The claimant kept her employer informed of her medical
condition. The employer would not hold the claimant's
job until she could return to work after her six-week
checkup. Absenteeism due to illness is not misconduct.
The claimant was discharged, but not for any misconduct.
DuBois v. Redden and Rizk, P.A., 71-BH-90.
The claimant repeatedly failed to notify the employer of his absences
and failed to attend scheduled appointments with the employees'
assistance program. However, during this period, the claimant
was suffering from schizophrenia, which caused him to
act in an inappropriate manner. The claimant's psychiatric
problems precluded his ability to act deliberately or
willfully or to show a wanton disregard of his responsibilities.
Since all of the claimant's work problems were caused
by severe mental illness, his discharge was not due to
misconduct. Fagbolagun v. Department of Planning, 730-BH-90.
The claimant had an excessive number of incidents of tardiness. However,
during his last month of employment, his lateness was
entirely due to his documented medical condition. The
earlier incidents of tardiness were due to transportation
problems. The claimant was discharged for misconduct.
Schools v. AMI-Sub of Prince George's County, 932-BR-90.
The claimant missed 11 of the last 34 days of work. The claimant had
been injured and her assignments were adjusted to be within
her capabilities. The amount of absenteeism was not justified
by her injury. She had been counseled about the importance
of avoiding absenteeism. The claimant was discharged for
gross misconduct. Johnson v. United States Postal Service, 66-BR-91.
The claimant notified the employer that he was ill and would be unable
to report to work. The employer advised the claimant to
return to the job site as soon as he was physically able
to do so. The claimant was unable to work for 13 days.
Upon recuperating, he returned to the job site ready to
resume his job, however, the claimant learned he had been
discharged while he was absent due to illness. The claimant's
discharge for failing to report to work while he was ill
was not for misconduct. Rivas v. Miller and Long Company,
The claimant was only able to work three hours per day, four days per
week, due to a documented medical condition over which
she had no control. Her inability to work 40 hours per
week does not rise to the level of misconduct. Dugan
v. Store, Ltd., 2056-BR-92.
The claimant was repeatedly absent from work due to a medical condition
which she previously controlled by prescription medicine
through medical insurance offered by her employer and
which she recently refused to purchase and take. After
repeated warnings, the claimant was terminated. Her refusal
to purchase and take her medication, causing her to be
repeatedly absent from work rises to the level of gross
misconduct. Bryant v. Johns Hopkins Bayview Medical
3. Heightened Duty to Report to Work
Employees who miss a lot of time, even for excused reasons,
have a heightened duty not to miss additional time for
unexcused reasons and to conform to the employer's notice
requirements. Daley v. Vaccaro's, Inc., 1432-BR-93.
The claimant's absences all appeared to be due to illness. However, at
least some of her occurrences of lateness were not due
to legitimate medical reasons or other unavoidable reasons.
An employee who misses a large number of work days, even
if excused, has a heightened duty not to miss any work
for unexcused reasons. The claimant was discharged for
misconduct. Kinsey v. Nordstrom, Inc., 1103-BR-90.
The claimant was incarcerated for nine weeks during which
time his job ended for lack of funding. The claimant provided
notice of the incarceration to the employer, and was eventually
released when the charges were dropped. The claimant's
incarceration, of which the employer was given notice,
for a crime of which the claimant was not guilty, constitutes
a good excuse for the absences which were totally beyond
his control, and a finding of misconduct is not supported.
Lansinger v. Baltimore County Fire Department, 1305-BR-82.
The claimant was discharged for absenteeism while incarcerated for
violation of probation. The claimant failed to take any
reasonable steps to notify the employer of the absence
before or after incarceration. The claimant merely called
in sick on his court date. The claimant's actions violated
a standard of behavior the employer had a right to expect,
showing a gross indifference to the employer's interest,
thus constituting gross misconduct. Roach v. Montgomery
County Government, 710-BR-85.
An incarcerated claimant was allowed to continue working under a work
release program, but failed to adhere to the rules and
be present at the work site when required. As a result,
he was taken off work release and had to serve the balance
of his sentence, causing him to be absent without excuse.
The claimant was discharged for gross misconduct.
Kennedy v. Baltimore City Wastewater Treatment Plant, 990-BR-85.
The claimant failed to report to work due to his incarceration for
a handgun violation. The claimant was discharged for gross
misconduct. Farmer v. Perdue Farms, Inc., 1563-BR-91.
5. Transportation Problems
The claimant was late one time due to a car problem and
notified the employer. However, the claimant was fired
after this. The claimant was otherwise a good employee
and had worked for the employer for seven years. There
was no misconduct. Seledee v. Thomas H. McCarty,
et al., 547-BH-88.
The claimant was absent nine times and late 17 times within a year.
She received three written warnings and a suspension.
The claimant had problems with transportation which led
to her absences and latenesses. Transportation problems
do not excuse numerous incidents of absenteeism and lateness.
The claimant was discharged for gross misconduct.
Williams v. Francis Scott Key Medical Center, 942-BR-91.
6. Personal or Family Problems
Where the claimant was called away from work due to the
emergency hospitalization of her child, her discharge
for the absence was not for misconduct. Tawney v.
Continental Plastics, 785-BH-84.
C. Leaving Work Early or Walking Off Job
The claimant, who was an essential employee, left work without
notice during an emergency overtime shift. The burden is
clearly on the claimant to show good reason for leaving.
Absent that showing here, the claimant's leaving under the
circumstances constitutes gross misconduct. Townsend
v. Baltimore Department of Public Works, 758-BH-83.
There was no misconduct or gross misconduct where the claimant left
work early because a job-related medical problem with
his hands rendered him unable to continue working that
day. Drayton v. Perdue, Inc., 104-BR-84.
The claimant had a heated argument with his supervisor, left the site
of the argument and visited the president of the company.
The claimant told the president that he had problems and
was leaving. He left the premises and did not show up
again until the next day. When he reported to work, he
was advised that he no longer had a job there. The claimant
had no right to walk off the job the day before. The claimant's
action constitutes misconduct. Tate v. Armscorp of
America, Inc., 256-BR-90.
The claimant had his supervisor's permission to take some time off
during the day to attend to personal business. When he
called his supervisor to let him know that he would be
delayed in getting back to work, he was told he was discharged.
No reason was given. The claimant was an excellent worker
and did not have any serious problems at work. The claimant
was discharged, but there was no misconduct. Carter
v. Erdman Lumber Company, Inc., 573-BH-90.
The claimant left work early without permission. He was riding to and
from work with a coworker who had been given permission
to leave early. However, upon learning that his coworker
was leaving early, the claimant did not attempt to obtain
permission to leave early also. There was no evidence
that the claimant falsified his time records. The claimant
was discharged for misconduct. Myrick v. Toepfer Construction
Company, Inc., 651-BR-91.
Where a claimant has a position where he is responsible for the security
and safety of others and their property, a heightened
expectation that the claimant will fulfill his duties
properly can and should be expected by employers. When
the claimant, a trained guard who was responsible for
the security of the motel, left his post without authorization,
well before the end of his shift and in violation of company
rules, he was grossly negligent in his duties and this
constitutes gross misconduct. Puth v. Montgomery Investigative, 2625-BR-94.
X. Alcohol and Drug Use
Drug abuse and alcoholism are considered diseases under
Section 8-101 of the Health-General Article of the Annotated
Code of Maryland. Where alcoholism results in "an irresistible
compulsion to drink," the resulting absenteeism and
performance problems have been held not to be misconduct.
Jacobs v. California Unemployment Insurance Appeals
Board, 25 Cal. App. 3d 1035, 102 Cal. Rptr. 364 (1972).
This doctrine does not excuse an employee's conduct where
he has refused the chance to get treatment, has deliberately
failed to complete treatment, or has not shown that his
urge to drink is an irresistible compulsion.
An employee's refusal to submit to a drug screening test may be grounds
for a finding of gross misconduct. However, when requiring
drug or alcohol testing, the employer must adhere to the
provisions of Section 17-214.1 of the Health-General Article
of the Annotated Code of Maryland in order to have the
test results be considered as evidence of misconduct.
This section requires, among other things, that the employer
give the employee written notice of his right to resubmit
the same test sample to a laboratory of the employee's
choosing. If the employer fails to offer this option to
the employee, the test results may not be able to be used
as a basis for a finding of misconduct.
A. On Work Premises
The claimant was discharged for gross misconduct because
he reported to work in an intoxicated condition after the
employer had given him a second chance to rehabilitate himself.
The claimant showed some ability to remain sober and the
employer made a sincere effort to give the claimant an opportunity
to rehabilitate himself. Chinn v. Cook's Supermarket, 1168-BH-81.
The claimant drove the employer's truck while under the
influence of alcohol. This was gross misconduct. Howard
v. Ray Sears and Son, 517-SE-87.
The employer hired a private investigator to investigate the use and
sale of illegal drugs on its property. In the presence
of the private investigator, and on company property,
the claimant purchased a $10.00 bag of marijuana. This
was a violation of the employer's standards of ethics
and conduct and was gross misconduct. Patterson v. Applied
Physics Laboratory, 864-BR-89.
The claimant was discharged for drinking alcoholic beverages
while on the job, in violation of the employer's policy.
This was gross misconduct. Vernon v. Slapstix Comedy
B. Off Work Premises
The claimant reported to work with a .17 blood alcohol level after
consuming beer a few hours before work. The claimant's
job was to drive a crane. The claimant was discharged
for gross misconduct. Prestileo v. Durrett-Sheppard
The claimant took and also gave to another employee, controlled dangerous
substances while on a dinner break at home. Both went
back to work, and the other employee behaved in a crazed
manner. The claimant was discharged for gross misconduct.
Hadaway v. Convention Complex, 98-BR-88.
The claimant correctional officer was convicted of driving while intoxicated
during his off duty hours. Criminal charges of drug possession
were placed on the stet docket and not prosecuted at that
time. As a result of this, the claimant, whose duties
included searching inmates for drugs, was suspended pending
discharge. A correctional officer is in a position of
trust in which his own integrity and avoidance of criminal
action is relevant to his daily work. Therefore, a breach
of the employment rule prohibiting the use of drugs, even
while off duty, constitutes gross misconduct. Queen
v. State of Md./MCIJ, 219-BH-89.
C. Alcoholism As a Disease
The claimant, who was an alcoholic, was absent on several
occasions, some due to alcohol treatment and one occasion
due to an on-the-job injury. After a long period of abstinence,
the claimant again began drinking, entered a treatment
program, and was discharged upon his return to work. Based
upon evidence adduced at the hearing, it was concluded
that the claimant was a "chronic alcoholic"
as that term is defined in Section 8-101 of the Health-General
Article of the Annotated Code of Maryland. Whether his
chronic absenteeism, caused by chronic intoxication, constitutes
misconduct depends on whether his intoxication-induced
behavior was the product of an irresistible compulsion
to drink; if so found, the claimant's behavior would not
be disqualifying. See, Jacobs v. California Unemployment
Insurance Appeals Board, 25 Cal. App. 3d. 1035, 102
Cal. Rptr. 364 (1972). In this case, the claimant was
unable to control his drinking, and much of his absenteeism,
particularly the last incident that led to his discharge,
was due to an irresistible compulsion to drink, and was
therefore not misconduct. Johnson v. Union Trust Company
of Maryland, 204-BH-85.
The claimant had a large number of latenesses which were due to alcoholism.
However, the claimant failed to show a good faith effort
to correct the problem or that he suffered from an irresistible
compulsion to drink. The claimant was discharged for gross
misconduct. Lane v. City of Baltimore, 678-BR-89.
The claimant failed to report to work for three days without notifying
the employer of his absence. There was insufficient evidence
that an irresistible compulsion to drink alcohol led to
the claimant's absenteeism. The claimant was discharged
for gross misconduct. Reardon v. Housing Authority
of Baltimore City, 708-BR-90.
D. Effect of Treatment
1. Duty to Seek Treatment
An employer's failure to discover a claimant's alcoholism
and then treat it under its employee assistance program
does not excuse the claimant's ten-year history of performance
problems. An employer is not the legal guardian of its employees,
nor does the existence of an employee assistance program
make the employer the insurer against any of the diseases
or maladies which the program is designed to treat.
Thornton v. UMAB, 701-BH-85.
The claimant suffered from the illness of alcoholism, but failed to
take advantage of available treatment, after being specifically
granted a leave of absence to attend treatment, and then
failed to return to work for two weeks thereafter. The
claimant's conduct constitutes gross misconduct. Williams
v. Baltimore City Schools, 469-BR-88.
The claimant's job consisted of applying a hazardous chemical to underground
storage tanks. As part of a required physical, the claimant
was tested for drugs and tested positive for cocaine.
The employer demanded that the claimant enroll in a drug
treatment program but the claimant refused and was discharged.
The employer was entitled to require the claimant to make
all necessary efforts to stop ingesting this drug. The
claimant was discharged for gross misconduct. Insley
v. Buffcoat, Inc., 432-BR-91.
2. Cooperation with Treatment Program
The claimant was a drug user who attended a drug treatment
program and returned to work on the condition that he
would remain drug free. The claimant violated this condition.
This is gross misconduct. Sommerfield v. National
The claimant failed to abide by treatment for alcoholism, even with
the employer's assistance. This was held to be gross misconduct.
Gunther v. City of Baltimore, 633-BH-87.
E. Effect on Job Performance
The claimant, who reported to work under the influence of
alcohol while learning how to operate a fork lift truck,
was discharged for gross misconduct. Young v. Fort Howard
Cup Corporation, 933-BR-89.
The claimant was employed as a maintenance man in a dairy plant. The
claimant technically violated the employer's policy by
having a .037 level of alcohol in his blood at work. Under
Maryland law, this blood level does not raise a presumption
that the claimant was either intoxicated or under the
influence of alcohol. Without any proof that the claimant
was unfit, the claimant committed no misconduct since
having this small concentration of alcohol in one's system
is neither illegal nor detrimental to the employer's interest.
Poe v. High's Dairies, Inc., 224-BH-93.
The claimant was discharged for bizarre, loud and aggressive
behavior which resulted from the side effects of legally
prescribed drugs. The claimant provided medical documentation
that the drugs could have been primarily responsible for
the behavior leading directly to the discharge. There
was no misconduct. Day v. Sinai Hospital of Baltimore, 540-BH-85.
It is not the claimant's addiction to drugs that constitutes misconduct,
but his violation of the employer's rules by reporting
to work and operating dangerous equipment while having
drugs in his system. Reaves v. ISPA Company, 126-BR-93.
The employer's rule forbidding employees to report to work with a detectable
residue of illegal drugs in their systems was reasonable.
Gordon v. Baines Management Company, 487-BR-93.
NOTE: This decision was affirmed by the Circuit
Court and by the Court of Special Appeals.
The claimant was discharged as a result of a positive drug test administered
pursuant to the employer's zero-tolerance drug policy.
The claimant's unrebutted testimony was that he had only
ingested cough medication that he was given by a co-worker,
the contents of which he was unaware at the time of ingestion.
The Board found that the employer had not met its evidentiary
burden of proof. Further, the Board concluded that one
isolated incident, due to an unintentional mistake by
the claimant, does not rise to the level of misconduct,
let alone gross misconduct. Lyston v. PreMix Industries,
Inc., 01379-BH-99 (1999).
F. Alcohol and Drug Screenings
1. Mandatory, Random Testing
The claimant drove a bus for the employer. Two days after
he was hired, he took a physical which revealed chemical
evidence of the use of cocaine. When the employer learned
the results of the claimant's physical, the claimant was
discharged. This was held to be gross misconduct. Lucas
v. Gladney Transportation, 577-BH-90.
The employer was subject to the requirements of the United States Department
of Transportation, which required random drug testing.
The claimant was familiar with the procedures, having
been tested before. After receiving notice to present
himself within the hour for testing, the claimant failed
to appear or to contact his employer. A finding of gross
misconduct is warranted. Gintling v. Baltimore Gas
and Electric Company, 913-BH-92. NOTE: This
decision was reversed by the Circuit Court. The Court
of Special Appeals then reversed the Circuit Court, affirming
the Board's original decision.
A school bus driver's failure to submit to a required drug test
amounts to gross misconduct. Deluca v. Montgomery
County Public Schools, 1632-BR-93.
2. Required Due to Employee's Conduct
The claimant showed impairment, had the odor of marijuana,
and refused a drug test against the employer's policy,
direct order and warnings. The claimant could have taken
the test in private. The claimant's actions constitute
gross misconduct. Conney v. Fort Howard Cup Corporation, 552-BH-88.
The claimant had an attendance problem and the employer required urine
and blood testing. The claimant refused. This was held
to be gross misconduct. Stauffer v. Noxell Corporation, 1111-BH-88.
On the claimant's last day of work, he was taking an excessive amount of
time to do his work, was late for work and arrived sweating,
nervous and with dilated pupils. He avoided eye contact
with other employees. The employer sent the claimant for
a drug/alcohol screening test which, after being redone,
came back positive for marijuana and cocaine. The claimant
was discharged for gross misconduct. Savage v. The
Johns Hopkins Health System Corporation, 223-BH-89.
The claimant truck driver had undergone rehabilitation for cocaine
addiction at the employer's expense. He successfully completed
the program and knew that one of the conditions of his
return to work would be to remain drug free, which would
be confirmed by random screening by the employer. The
claimant was given a drug screening test and failed it.
This was gross misconduct. Bydume v. Baltimore Gas
and Electric Company, 950-BR-90.
3. Employer's Obligation Under Health-General Article
The employer failed to meet the requirements of Section
17-214.1(c)(1)(iv) of the Health-General Article of the
Annotated Code of Maryland. This section provides that
an employer, after having required an employee to be tested
for the use or abuse of any controlled dangerous substance,
and who receives notice that the employee has tested positive,
after confirmation of that test result, shall provide
the employee with a statement or copy of subsection (d)
of this section permitting an employee to request independent
testing of the same sample for verification of the test
result. Therefore, based on the employer's failure to
meet this requirement, thereby denying the claimant an
opportunity to be retested, the Board concluded that the
claimant was discharged for no misconduct. The Board cannot
consider as evidence test results which were not acquired
in conformity with the law. Webe v. Anderson Oldsmobile
A claimant was given a chance to go into an addiction treatment program
in lieu of termination. Part of the agreement between
the claimant and the employer was that if the claimant
did not abide by the rules of the treatment program, he
would be fired. Subsequently, the claimant tested positive
for alcohol. This proved that he violated the rules of
the program. Section 17-214.1(c)(1)(iv) of the Health-General
Article does not apply, because the employer did not administer
the test nor require the claimant to be tested. The employer
only required that the claimant abide by the rules of
the treatment program. The claimant violated a rule of
the treatment program, which resulted in a finding of
gross misconduct. Parker v. Greater Baltimore Medical
The claimant was randomly tested for drugs in accord with the union
agreement, and was found to be positive for cocaine. He
was then required to enroll in an employee assistance
program since it was his first offense. One of the conditions
for his remaining employed was that he not test positive
for any drugs. Subsequently, the claimant was tested and
found positive for opiates and cocaine metabolites. As
a result, he was discharged. The employer in this case
is not required to follow the drug testing requirements
in Section 17-214.1 of the Health-General Article because
it had entered into a compact with Maryland, Virginia
and the District of Columbia allowing it to provide for
the removal of employees without regard to the laws of
the signatories. The claimant was discharged for gross
misconduct. Thompson v. Washington Metro Area Transit
Whether the claimant is informed of, or given the opportunity to have
a second testing of the same sample is irrelevant when
the claimant does not deny that the results of the drug
test are accurate. Boyd v. Cantwell Cleary Company,
The claimant was not given an opportunity to refute the results of
his drug test, however he does not dispute the drug test
results. Furthermore, he admits to a relapse of his drug
addiction. The fact that he did not see an actual copy
of the lab report and was not informed of his right to
retest the sample is not relevant when the claimant does
not dispute any of the results or allegations and admits
to a continuation of drug abuse. Nolan v. Lyon, Conklin
and Company, Inc., 115-BR-95.
The claimant does not dispute the fact that he failed a random drug
test by testing positive for cocaine. The undisputed drug
test result is itself enough to support a finding of gross
misconduct even without testimony from the employer at
the hearing. The test result speaks for itself. Jones
v. Race Track Payroll Account, Inc., 2204-BR-95.
The employer is not obligated to arrange for or provide a retest of
the employee's specimen, but is required to provide a
copy of the employee's retesting rights. The employee
is to designate the laboratory that is to do the retesting.
The employer has the duty to cooperate with the employee,
i.e. have the sample sent to the employee-designated certified
laboratory, but is not required to provide a list of approved
laboratories. Burton v. Thorn EMI Malco, Inc., 1852-BR-92.
The claimant truck driver tested positive for the use of cocaine on
a recognized test conducted by an established laboratory.
The procedures used by the employer comply with the regulations
issued under the Federal Motor Carriers Safety Act, 49
C.F.R. Section 391 et. seq., but these procedures do not
comply with the Maryland law regulating drug testing by
all employers. (See, Section 17-214.1 of the Health-General
Article.) The Maryland law is not preempted by the federal
Motor Carriers Safety Act. Absent a showing that the employer
has complied with the Health-General section cited above,
the Board will not consider drug test results as probative
evidence in a discharge case. But, in this case, the claimant
actually knew of his rights under the Maryland statute
from his experience at a previous employer. He made no
substantial effort to obtain a retest. The purpose of
the Health-General section is met by the claimant's actual
knowledge of his right to have a retest. Requiring written
notification is simply an added formality in this case.
Scott v. Old Dominion Freight Line, 28-BH-93.
Section 17-214.1(d) affords employees the right to have their urine or blood
samples retested at their expense. The law sets no limitation
on this expense and does not require the employer to use
any particular laboratory in order to minimize cost to
employees who desire a retest on their samples. Use of
an out-of-state laboratory does not impose an unreasonable
cost on employees. Toles v. Caterair International
4. Validity of Test
The repackaging of a urine sample which had sat sealed
in a refrigerator for five days compromised the validity
of the drug test, even where the claimant observed the
repackaging and initialed the first, then the second container,
to indicate that it was his sample. Nunnally v. Ace
Hardware Corporation, 205-BH-93.
|XI. Exercise of Employee's Rights
When an employee is discharged solely because the employee
exercised a statutory or constitutional right, no misconduct
will be found. For example, where an employee was discharged
after she informed her employer that she planned to file
a complaint with the Equal Employment Opportunity Commission
(EEOC) alleging discrimination, there was no misconduct.
Also, if an employee is discharged because he is unable
to work certain hours due to religious beliefs, the imposition
of a disqualification from receiving unemployment benefits
would be a violation of the employee's First Amendment rights.
Hobbie v. Unemployment Appeals Commission of Florida,
480 U.S. 136, 107 S.Ct. 1046 (1987).
A. Right to Respond to Job Conditions
1. Responding to Evaluations
The claimant was discharged as insubordinate for responding
to an evaluation by submitting a written memorandum to her
supervisor and the company president which included complaints
about her supervisor. There was no misconduct. Morris
v. Automated Health Systems, 817-BR-83.
2. Requesting Change in Work Status
The claimant asked for a raise and a change in hours.
As a result, the claimant was discharged, but there was
no misconduct. West v. Ronald Jones, et al., 583-SE-88.
The claimant worked for almost two years on the 4:00 p.m. to 11:00
p.m. shift. He began taking a course which made it very
difficult for him to report to work by 4:00 p.m. The claimant
asked the employer if his hours could be cut and his starting
time be set at 5:00 p.m or 5:30 p.m., but the employer
failed to respond. When the claimant subsequently reported
to work on time, he was told that he had been laid off.
A suggestion that one's hours be changed is not misconduct.
Therefore, the claimant was discharged, but not for any
misconduct. Hill v. BPS Guard Service, Inc., 1031-BR-91.
3. Refusing to Reimburse for Cash Shortages
The claimant gas station attendant was discharged for
her refusal to reimburse the employer for shortages incurred
on the job, since such payment would reduce her pay to
below the minimum wage. The employer's requirement of
reimbursement was illegal under the Fair Labor Standards
Act and its regulations, which provide that deductions
for shortages cannot be made from wages if such deductions
bring the employee's remuneration below the minimum wage.
Therefore, the claimant's refusal to reimburse the employer
does not constitute misconduct. Hatfield v. Tri-State
4. Filing Charges Against Employer
The claimant was discharged upon informing her employer
that she was going to file a complaint with the Equal Employment
Opportunity Commission (EEOC). The claimant had a right
to complain if she felt aggrieved, and alerting the employer
that she intended to file a complaint is not misconduct.
Cummings v. Rod n' Reel Restaurant, 725-SE-83.
The claimant was discharged for filing a request for arbitration.
This was not misconduct. Weambe v. Housing Authority
of Baltimore, 126-BR-88.
||5. Questioning Employer's Action or Inaction
The claimant was discharged after he questioned the employer
about whether the employer was making timely payments to
the court of the child support payments he was withholding.
The employer in fact was not making timely payments. The
claimant had every right to question the employer about
this. His questioning of the employer did not amount to
misconduct or gross misconduct. Barnes v. Empire Glass
and Mirror, Inc., 1171-BR-91.
B. Religious Beliefs
The claimant was discharged because he could not work on
Sunday, as required by the employer, because of religious
reasons. A state cannot constitutionally apply the eligibility
provisions of the unemployment compensation statute so as
to deny benefits to a claimant who refuses employment because
the employment violates that claimant's religious beliefs
prohibiting work on certain days. To do otherwise would
be in violation of the guarantee of free exercise of religion
under the First Amendment to the United States Constitution
made applicable to the states by the Fourteenth Amendment.
Sherbert v. Verner,
374 U.S 398, 83 S.Ct. 1790 (1963). Therefore, benefits
were allowed the claimant under the Maryland Constitution
and the First and Fourteenth Amendments to the United States
Constitution. Estes v. Fred and Harry's Restaurant, 789-BH-84.
The claimant missed work for sincere religious reasons and
was discharged. There was no misconduct. Robinson v.
United States Fidelity and Guaranty Company, 975-BH-89.
C. Right to Seek Other Employment
1. For Oneself
The claimant became unhappy with her supervisor's methods
of supervision. In December, 1989, the claimant met with
her supervisor and another employee and announced that she
was looking for other employment. The claimant did not intend
to quit unless she found better employment. The employer,
however, began searching for a replacement for the claimant
and in early January, 1990, informed the claimant that her
last day of work would be January 19, 1990. A statement
by an employee that the employee is seeking, or is going
to seek other work, simply is not the same as resigning.
The claimant was discharged, but not for any misconduct.
Levitt-O'Malley v. It's Polite to Point, 515-BR-90.
The claimant informed the employer that he had accepted another job
which was to begin at some indefinite time in the future.
The claimant did not intend to resign and specifically
informed the employer that there was no definite date
set for his job change. The employer required the claimant
to come up with a date for his resignation within 24 hours.
This amounts to a discharge. Announcing an intention to
leave work at some time in the future is not misconduct.
Kroski v. Social and Scientific Systems, 1072-BR-90.
2. For Others
The claimant was discharged for mentioning a job opening
to a coworker who was later hired for the position. The
claimant had a right to pass along publicly available
information to a friend, and her actions do not constitute
misconduct. Benvenga v. Sapero and Sapero, 720-BH-84.
The claimants, who were all air traffic controllers and
members of PATCO, the air traffic controllers union, participated
in a strike, which resulted in substantial work stoppages
at subject air fields. The claimants knew that federal law
prohibits such strikes and that doing same constitutes a
felony. Knowingly engaging in a patently illegal strike
satisfies the definition of gross misconduct. Hudgins,
et al. v. Federal Aviation Administration, 162-BH-82.
When a wildcat strike in violation of the terms of the employment contract
occurred, the claimant, a union steward, requested that
another union begin a secondary boycott in order to shut
down the employer's operations. The claimant also refused
to ask his own men to return to work when so requested
by the employer. The attempt to shut down the employer's
operations was gross misconduct. Since the employer's
request that the claimant, a union official, at least
instruct his men to honor the contract was reasonable,
the refusal do this was also gross misconduct. Wilson
v. CSY Finance, Inc., 580-BH-86.
Making public statements about one's employer could constitute
misconduct if the statements were untrue or possibly if
the statements were even technically accurate but taken
so much out of context that the net effect would be unfair
harm to the employer. In this case, the employer failed
to meet its burden of showing that statements in a television
interview were untrue, or unfairly taken out of context.
With regard to the newspaper article, the employer has
not shown that the claimant made any of the derogatory
remarks. The claimant was discharged, but not for misconduct
or gross misconduct. Bailey v. Diesel Institute of
After the claimant refused to sign a driver's liability statement,
the employer told him to turn in his keys and leave. The
statement that the claimant was asked to sign was almost
identical to an earlier statement that he had signed when
he was first hired and which was technically still in
effect. The claimant adamantly refused to sign it without
stating his objections or offering to negotiate. The claimant
was discharged for misconduct. Fitch v. Eastend Hotel,
After the claimant was involved in an accident while driving the
employer's vehicle, the employer sought to collect the
$250 insurance deductible amount from the claimant's wages
pursuant to a prior agreement by the claimant to indemnify
the employer. The claimant was discharged when he refused
to do so primarily because he denied any negligence on
his part. Courts have generally been reluctant to enforce
contracts which purport to allow a party to make unilateral
determinations of negligence and damages, thereby circumventing
the judicial process. The claimant's refusal to allow
a deduction for damages, where he disputed negligence
and indebtedness, is not misconduct. Bayne v. G and
M Performance Parts, Inc., 694-BR-83.
XII. Application of Penalty
A. Discharge from Noncovered Employment
The disqualifications under Sections 8-1001 through 8-1003
are based on the reason for the claimant's present state
of unemployment. In every case, the reason why the claimant
left his or her last employment, covered or noncovered,
is certainly relevant to the reason the claimant is unemployed.
Yasin v. Grempler Realty, Inc., 273-BR-82.
B. Extent of Penalty
The claimant was found to have been discharged for gross
misconduct under Section 8-1002. The claimant was later
reinstated with back pay and argued that the Section 8-1002
penalty should be ignored because the discharge was nullified
by the reinstatement. The Section 8-1002 penalty is final
and is not affected by any subsequent reinstatement.
Tracey v. SCM Chemicals, 166-BH-84.