
    Thomas O’Connor & Co., Inc. vs. Commissioner of the Department of Employment and Training & another
    
    (No. 1).
    May 7, 1996.
    
      Employment, Termination, Urine testing. Employment Security, Discharge, Eligibility for benefits.
    Thomas O’Connor & Co„ Inc. (employer), appeals from a judgment of a District Court judge that affirmed a decision of the board of review (board) in the defendant department. The board determined that the other defendant, Richard Roy (employee), was entitled to unemployment compensation benefits. We transferred the appeal here on our own motion.
    
      David G. Shay for the plaintiff.
    
      Salvatore M. Giorlandino, Assistant Attorney General, for the Commissioner of the Department of Employment and Training.
    
      
      Richard Roy.
    
   The employer claims that the board erred in concluding that the discharge of the employee was not attributable “to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer.” G. L. c. 151A, § 25 (e) (2) (1994 ed.). The employer asserts that the employee violated its policy against (1) the use of illegal drugs, (2) being under the influence of illegal drugs, or (3) purchasing, selling, possessing, distributing, or dispensing drugs or alcohol, while in each instance at work. There is, however, no such evidence.

The employee was obliged to submit to a drug screening analysis after he returned from a leave of absence in December, 1992. The result of that test showed that the employee had used a “morphine-like” substance. There was no evidence that the employee used illegal drugs, had illegal drugs, or was under the influence of illegal drugs while at work. In the absence of evidence to that effect, the test results would not support a finding that the employee knowingly violated a reasonable and uniformly enforced rule of the employer. A positive drug test result is not alone sufficient to establish a violation of the employer’s drug policy.

Judgment affirmed.  