Fired Worker Due Jobless Benefits Divided Court Says Man Who Smoked Pot On His Day Off Is Entitled To Unemployment

A sharply divided Idaho Supreme Court says a lumber company must pay jobless benefits to a worker fired after a drug test showed he used marijuana on his day off.

In a 3-2 decision released Wednesday, the court majority said Steven R. Merriott was entitled to unemployment pay from Shearer Lumber Products. The court, in a decision written by Chief Justice Charles McDevitt, upheld lower rulings that there was no evidence that Merriott was under the influence of drugs or alcohol while at work.

Therefore he could not be fired for employment-related misconduct, the majority said.

Shearer’s drug policy did not specifically forbid employees from using drugs on their days off, the court said.

Justices Cathy Silak and Gerald Schroeder wrote separate dissents, with Schroeder scolding the majority for reaching an illogical conclusion.

Schroeder said possession of marijuana is a crime in Idaho. Therefore, Merriott didn’t have to be told specifically by the company that using marijuana during non-working hours would violate the drug policy.

“The criminal laws of Idaho say that a person shall not smoke marijuana,” he said. “The fact that the smoking occurred on non-work hours is irrelevant because the active ingredient of the substance was still in Merriott’s body during work hours.”

Schroeder said Merriott was a heavy equipment operator.

“One must ask the question: Could any reasonable employer send an employee out to operate heavy equipment knowing the employee had the active ingredient of marijuana in his system? The answer is, no,” he said.”His employer attempted to act responsibly in establishing a drug policy and enforcing it,” the judge said. “Funds from that employer now go into Merriott’s pocket with the assistance of the state.”The business that did the right thing pays. The employee that did the wrong thing receives,” he said.

Silak said the employer could define “under the influence of any chemical substance or alcohol during working hours” as the equivalent to testing positive on a drug test administered during working hours.

“As an employer, Shearer could make the decision that impairment consisted not of physical signs or symptoms, but rather testing positive on a drug test administered during working hours,” she said.

Shearer has facilities in Elk City and Grangeville.