
    Thomas O’Connor & Co., Inc. vs. Commissioner of the Department of Employment and Training & another
    
    (No. 2).
    May 7, 1996.
    
      Employment, Termination, Urine testing. Employment Security, Discharge, Eligibility for benefits.
    This appeal, which we transferred here on our own motion, presents the same substantive issue that we decided in Thomas O’Connor & Co. v. Commissioner of the Dep’t of Employment & Training (No. 1), ante 1007 (1996). The employer is the same. The policy concerning drugs in relation to the workplace is the same. The agency’s decision was the same, awarding unemployment compensation benefits to an employee. The same District Court judge affirmed the agency decision. The employee is different, but the circumstances of his situation are even less favorable to the employer than in the previous case because the employee was tested for drug use when he was hired. These test results showed that the employee had used marihuana, and the employer discharged the employee when it received the results of the test one week after the employee started work.
    
      David G. Shay for the plaintiff.
    
      Salvatore M. Giorlandino, Assistant Attorney General, for the Commissioner of the Department of Employment and Training.
    
      
      Michael A. Murphy.
    
   It would be impossible for an employer to prove a violation of its workplace-related drug policy solely by the proof that before the employee ■ was hired he had used a controlled substance. Moreover, there was no evidence that the employee did anything while at work in violation of the employer’s drug policy. The agency decision to award the employee unemployment compensation benefits was correct.

Judgment affirmed.  