If an employee admits to smoking marijuana and is subsequently discharged based on that admission, you would think that if the employee later files for unemployment insurance benefits he would be deemed ineligible…, right? Well, not necessarily said an Illinois Appellate Court, and particularly if the employee was not smoking marijuana on company property and while not performing any work related duties. Eastham v. The Housing Authority of Jefferson County and IDES, 2014 IL App. (5th) 130209 (5th Dist. Dec. 2, 2014).

William Eastham was employed by the Housing Authority of Jefferson County and worked in its maintenance facility. The Housing Authority has a drug and alcohol free workplace policy that prohibited the “possession, use, consumption or being under the influence of a controlled substance…while on Housing Authority premises and/or while in the course of employment of the Housing Authority.” The policy further provides that “for purposes of this policy, ‘under the influence’ means having any measurable amount of a prohibited substance under this policy in any test of the employee’s breath, blood, urine, etc.” After Eastham took a mandated random drug test, he told his supervisor that he had smoked marijuana while on vacation a few weeks earlier and did not believe he would pass the drug test. As luck would have it, however, his drug test results came back negative. Despite the negative drug test results, Eastham was subsequently terminated for violating the Housing Authority’s drug use policy.

Shortly thereafter, Eastham filed a claim for unemployment benefits with the Illinois Department of Employment Security (IDES), which interpreted the phrase “in the course of employment” in the Housing Authority’s drug use policy to mean an employee’s entire “tenure while working for the employer, not just while performing services.” Notably, that phrase had not been defined under the policy. Thus, the IDES held that Eastham willfully violated the Housing Authority’s drug use policy by smoking marijuana even though he was not on company premises and did so while on vacation. Eastham appealed that decision to the Circuit Court of Jefferson County, which held that IDES misinterpreted the term “in the course of employment” to include at any time an employee is employed by the Housing Authority.” Rather, it stated that under “well-settled” Illinois law, that phrase encompasses acts that occur “at a place where the worker may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in something incidental thereto.”

The Appellate Court affirmed the Circuit Court’s decision, holding that Illinois courts have adopted the same definition of “in the course of employment” as in the workers’ compensation context, which is 1) at a place where the employee is reasonably expected to fulfill her duties;” and 2) “while she is performing those duties.” It reasoned, therefore, that because Eastham did not smoke marijuana in either context, he did not violate the Housing Authority’s drug use policy. The Appellate Court also found that because Eastham was not employed in a “safety sensitive position” (e.g. bus driver), the Housing Authority’s attempt to expand its policy to include off-duty conduct was unreasonable. Notably, however, the Appellate Court emphasized that it was not determining whether the Housing Authority was justified in discharging Eastham, but only whether he engaged in “misconduct” under the Unemployment Act such that would disqualify him from receiving unemployment insurance benefits.

With the passage of state marijuana laws, employers face the strong possibility that more of their employees may be using marijuana outside the workplace. This decision appears to suggest that in the unemployment context, so long as the employee is not in a “safety sensitive” position, and is not using or impaired by marijuana while on the job, the employee may not be in willful violation of an employer’s drug-use policy that prohibits drug use while on Company property and during the course of his employment. This is not to suggest, nor did the Court here, that the employer was not justified in the decision to terminate, however.