gavel.gif (3462 bytes) Workers� Comp.
Claimant�s off-duty misconduct does not bar her from benefits

For a free copy of the opinion in Burger v. Unemployment Compensation Board of Review, contact Kristy Mitchell ([email protected]).

A claimant�s drug use does not preclude her from obtaining unemployment benefits, the Pennsylvania Supreme Court ruled on July 16 in Burger v. Unemployment Compensation Board of Review (UCBR).

According to the opinion, Diana Burger was a nurses� aide at Garvey Manor nursing home. After being treated for a work injury, Burger�s physician sent the employer a bill along with her medical history. The history indicated that Burger regularly used drugs such as marijuana and illegally obtained prescription drugs. When questioned by the employer, Burger admitted to smoking marijuana every night, but denied illegal use of prescription drugs. Due to her drug use, Burger was fired.

She applied for unemployment and was denied due to willful misconduct that caused Burger to be fired. On appeal to the Commonwealth Court, Burger claimed that she did not engage in willful misconduct as there was no evidence linking her drug use to work performance. The Commonwealth Court said Burger�s behavior was inconsistent with acceptable standards of conduct and affirmed the decision of the UCBR.

The Supreme Court, on appeal, reversed the decision of the Commonwealth Court. The Supreme Court said that, �off-duty misconduct will not support a finding of willful misconduct under Section 402(e) unless it extends to performance on the job; in such case, the misconduct becomes work-related.�

The court stated that there was nothing in the record to indicate that the drug use had an impact on Burger�s job performance. The court went on to say, �The conclusion that Claimant�s off-the-job drug use constitutes willful misconduct under Section 402(e) is unsupported. It is not insignificant that absent her admissions, Claimant�s performance was apparently satisfactory. Simply put, Employer failed to establish Claimant�s conduct was work-related, so Section 402 does not provide grounds for denying benefits.� 

The court then remanded the case to the UCBR for calculation of benefits.  


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