***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CITY OF WATERBURY v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT ET AL.
(AC 44635)
Cradle, Suarez and Harper, Js.
Syllabus
The plaintiff employer, the city of Waterbury, appealed to this court from
the judgment of the trial court dismissing its appeal from the decision
of the Board of Review of the Employment Security Appeals Division
(board), which affirmed the determination by an appeals referee that the
defendant claimant was entitled to certain unemployment compensation
benefits. The claimant, who had been a firefighter for the plaintiff, was
discharged from his employment after testing positive for marijuana in
a random drug test. The plaintiff alleged that the positive drug test was
in violation of a ‘‘last chance agreement’’ that the claimant had previously
made with the plaintiff and the claimant’s union and other employer
policies. The plaintiff contested the claimant’s claim for unemployment
benefits, asserting that the claimant had been discharged for wilful
misconduct under the applicable statute (§ 31-236 (a) (2) (B)). The
appeals referee determined that the claimant was a qualifying patient
and had been using palliative marijuana prescribed by a physician for
post-traumatic stress disorder in accordance with a provision (§ 21a-
408p) of the Palliative Use of Marijuana Act (§ 21a-408 et seq.), and that
the plaintiff had failed to allege that the claimant was discharged because
he was impaired on the job, in possession of marijuana at work, or
selling or trading drugs. The referee further determined that the claimant
was not discharged for wilful misconduct because the plaintiff did not
demonstrate that the claimant was discharged because he had been
disqualified under state or federal law from performing the work for
which he was hired as a result of a drug or alcohol testing program
mandated by and conducted in accordance with such law. The board
affirmed the appeals referee’s findings, reasoning that, to the extent the
last chance agreement contained a blanket prohibition against the use
of palliative marijuana, without specific consideration of the claimant’s
fitness for duty, the agreement was unreasonable as of the date of the
claimant’s discharge based on the protections of § 21a-408p (b) (3),
which provides that an employer cannot discharge a person solely on
the basis of his status as a qualifying patient under the act. The board
further concluded that the physician’s prescribing palliative marijuana
for the claimant’s medical condition constituted good cause or a mitigat-
ing circumstance for the claimant’s violation of the last chance
agreement, which prevented the board from finding that he committed
wilful misconduct. The plaintiff appealed the board’s decision to the trial
court, which, having found that the claimant fell under the protections
of § 21a-408p (b) (3), granted the motion for judgment of dismissal
filed by the named defendant, the Administrator of the Unemployment
Compensation Act. Held that contrary to the plaintiff’s claim, because
the legality of the claimant’s discharge was not at issue and the issue
before the board was whether the claimant’s violation of the last chance
agreement constituted wilful misconduct that disqualified him from
receiving unemployment benefits, § 21a-408p (b) (3) was relevant to the
reasonableness of the last chance agreement, on which the plaintiff
based its claim that the claimant was discharged for wilful misconduct,
and, therefore, the board properly considered it in the resolution of this
case; moreover, because it was undisputed that the claimant was a
qualifying patient entitled to protection under § 21a-408p (b) (3), the
claimant was likewise entitled to protection against employment penal-
ties resulting from his legal, off-duty use of medical marijuana; further-
more, the board reasonably concluded that, insofar as the last chance
agreement operated to allow the plaintiff to terminate the claimant’s
employment for his palliative use of marijuana, it was unreasonable,
and the unreasonable application of the last chance agreement to the
claimant’s palliative marijuana use foreclosed the possibility that the
claimant’s employment was terminated for wilful misconduct.
Argued September 7—officially released November 29, 2022
Procedural History
Appeal from the decision of the Board of Review of
the Employment Security Appeals Division affirming
the decision of the appeals referee that the claimant
was entitled to unemployment compensation benefits,
brought to the Superior Court in the judicial district of
New Haven and transferred to the judicial district of
Waterbury, where the court, Hon. Joseph H. Pellegrino,
judge trial referee, granted the named defendant’s
motion for judgment and rendered judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Daniel J. Foster, corporation counsel, for the appel-
lant (plaintiff).
Richard T. Sponzo, assistant attorney general, with
whom, on the brief, were William Tong, attorney general,
Clare Kindall, solicitor general, and Matthew LaRock,
deputy associate attorney general, for the appellee
(named defendant).
Opinion
CRADLE, J. The plaintiff, the city of Waterbury,
appeals from the judgment of the trial court, rendered
in favor of the named defendant, the Administrator of
the Unemployment Compensation Act (defendant), dis-
missing the plaintiff’s appeal from the decision of the
defendant Board of Review of the Employment Security
Appeals Division (board). The board held that the
defendant Thomas F. Eccleston II (claimant) was eligi-
ble for unemployment benefits because he was not dis-
charged for wilful misconduct, even though he tested
positive for marijuana use. On appeal, the plaintiff
claims that the board (1) erred in finding the Palliative
Use of Marijuana Act (PUMA); see General Statutes
§ 21a-408 et seq.;1 and specifically General Statutes
§ 21a-408p,2 applicable to the present case, and (2) erro-
neously concluded that the claimant was not discharged
for wilful misconduct. We disagree and, therefore,
affirm the judgment of the court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of the plaintiff’s
appeal. The claimant was employed by the plaintiff as
a firefighter beginning in 1995. On November 23, 2015,
in light of his issues with alcohol abuse and domestic
violence, the claimant entered into a last chance
agreement with the plaintiff and his union. The last
chance agreement contained several stipulations
regarding the claimant’s employment, including one
that stated the claimant ‘‘may be subject to immediate
termination . . . [i]f [the claimant] tests positive for
alcohol (at the level of 0.04 or above) or a controlled
substance.’’ Subsequently, the claimant was prescribed
and began lawfully using medical marijuana in compli-
ance with the terms of PUMA. Following a random drug
test administered on March 20, 2018, the claimant’s
employment was terminated for testing positive for
marijuana, a controlled substance, in violation of the
last chance agreement and other employer policies.
On April 28, 2018, the claimant submitted a claim for
unemployment benefits to the defendant. The plaintiff
contested the claim for benefits, asserting that the
claimant had been discharged for wilful misconduct
under General Statutes § 31-236 (a) (2) (B)3 for violating
the last chance agreement by testing positive for a con-
trolled substance. On June 19, 2018, the defendant
concluded that the claimant was discharged for wilful
misconduct and denied his claim for benefits. The
claimant appealed the defendant’s decision to the
Employment Security Appeals Division (appeals divi-
sion) in June, 2018, arguing that he was not discharged
for wilful misconduct.
Following a hearing before the appeals division on
August 6, 2018, an appeals referee for the appeals divi-
sion reversed the defendant’s decision. In an August
29, 2018 memorandum of decision, the appeals referee
set forth the following findings of fact: ‘‘The claimant
was employed by [the plaintiff] since 1995, most
recently as Fire Lieutenant. On April 23, 2018, the [plain-
tiff] terminated the claimant after he exercised a leave
of absence from March 28, 2018, until this formal separa-
tion. . . . On March 20, 2018, the [plaintiff] randomly
tested the claimant for drugs. The claimant tested posi-
tive for marijuana, triggering a leave of absence and
eventual termination. . . . The [plaintiff] terminated
the claimant citing violation of the last chance
agreement dated November 19, 2015; the Substance
Abuse Testing Policy (Collective Bargaining
Agreement); the Agreement between the city of Water-
bury and the Local 1339, IAFF, AFL-CIO, and the [plain-
tiff’s] Random Drug Testing Policy. . . . During Febru-
ary, 2018, the claimant obtained a prescription for
medical marijuana in connection with [post-traumatic
stress disorder]. As confirmed by the Connecticut
Department of Consumer Protection, letter dated
March 6, 2018, the claimant holds [a] medical marijuana
Registration Card, valid January 31, 2018, through Janu-
ary 31, 2019. The claimant never used prescription mari-
juana within [twenty-four] hours of reporting for duty.
. . . The claimant only used prescribed marijuana out-
side of work. . . . The [plaintiff] never charged the
claimant with being or appearing intoxicated while on
duty. . . . The claimant entered [into] a last chance
agreement on November 19, 2015, whereby any positive
test for alcohol or a controlled substance will trigger
immediate termination. . . . An underlying policy of
the rule is that THC levels may not be accurately
detected at any given time and that the danger posed
by the position requires clear thinking at all times.’’
In its conclusions of law, the appeals referee noted
that ‘‘[i]t is undisputed that the claimant in the case
before us has been designated by his physician as a
qualifying patient suffering from a medical condition
and that he was prescribed medical marijuana in
accordance with [§] 21a-408p.’’4 The appeals referee
determined that the plaintiff had ‘‘failed to allege . . .
that the claimant was discharged because he was
impaired on the job’’ or that ‘‘the claimant was in posses-
sion of marijuana while at work, or that he was selling or
trading drugs.’’ (Emphasis omitted.) Finally, the appeals
referee concluded: ‘‘Because the [plaintiff] did not dem-
onstrate that the claimant in this case was impaired at
work or discharged because he has been disqualified
under state or federal law from performing the work
for which he was hired as a result of a drug or alcohol
testing program mandated by and conducted in accord-
ance with such law,5 it has not established that the
claimant was discharged for wilful misconduct in the
course of the employment.’’ (Footnote added.)
On September 19, 2018, the plaintiff appealed the
decision of the appeals referee to the board. The board
adopted the appeals referee’s findings of fact and added
the following relevant amendments: ‘‘We add the follow-
ing sentence to the referee’s finding of [fact]: The claim-
ant was dependent on alcohol at the time that he entered
into the last chance agreement. We modify the referee’s
[last] finding of fact . . . as follows . . . . On March
30, 2018, the claimant’s physician performed a fitness
for duty test and found that the claimant was fit to
perform his job as a firefighter without restrictions.’’
(Internal quotation marks omitted.)
The board affirmed the decision of the appeals ref-
eree and, in doing so, reasoned: ‘‘[T]here is no evidence
in the record, or claim by the [plaintiff] that it was
mandated to conduct random drug tests on its firefight-
ers by either state or federal law, and therefore the
claimant is not disqualified from receiving benefits pur-
suant to [§] 31-236 (a) (14).6 . . . The board has pre-
viously ruled that a claimant’s violation of an employ-
ment agreement to participate in a drug treatment
program as part of a return-to-work agreement without
good cause or excuse may constitute wilful misconduct.
. . . [PUMA] prevents an employer from discharging
an individual solely on the basis of the employee’s status
as a qualifying medical marijuana patient. See General
Statutes [§] 21a-408p (b) (3). Such act does not restrict
an employer from prohibiting the use of intoxicating
substances during work hours, or being under the influ-
ence of intoxicating substances during work hours. [See
General Statutes § 21a-408p (b) (3).] In response to the
board’s request for written argument, the [defendant]
maintains that an employee’s status as a safety-sensitive
employee does not, in and of itself, cause such employee
to fall outside the protections of § 21a-408p (b) (3).
However, the [defendant] notes that a medical review
officer (MRO) is required to report a positive test for
marijuana to a third party, such as the employer, if the
employee’s continued performance of his or her safety-
sensitive function is likely to pose a significant safety
risk, see 49 C.F.R. § 40.327, at which time the employer
may require a fitness-for-duty test.
‘‘In the instant case, the [last chance] agreement was
signed prior to the legislature’s approval of medical or
palliative marijuana, and was reasonable at the time
based on the claimant’s alcohol dependency. However,
to the extent that the last chance agreement contained
a blanket prohibition against the use of palliative mari-
juana, without specific consideration of the employee’s
fitness for duty, such agreement would be unreasonable
as of the date of the claimant’s discharge on April 23,
2018, based on the protections of [§] 21a-408p (b) (3).
Moreover, the claimant’s physician’s prescribing pallia-
tive marijuana for the claimant’s medical condition con-
stituted good cause or a mitigating circumstance for
the claimant’s violation of the last chance agreement,
which prevents us from finding that he committed wil-
ful misconduct.
‘‘To the extent that the [plaintiff] maintains that it
did not discharge the claimant solely for his status as
a qualifying patient, we do not need to determine
whether the [plaintiff] violated § 21a-408p (b) (3).
Rather, we only need to determine whether the claim-
ant’s violating the last chance agreement constituted
wilful misconduct such that he is disqualified from
receiving unemployment benefits. While the [plaintiff]
argues that the claimant failed to disclose his medical
condition or his prescription until the [plaintiff]
received the positive drug test, it cites no specific provi-
sion requiring such disclosure in the last chance
agreement.’’ (Citations omitted; emphasis omitted; foot-
note added.)
Thereafter, on March 18, 2019, the plaintiff appealed
from the decision of the board to the trial court in
accordance with General Statutes § 31-249b7 and Prac-
tice Book § 22-1 et seq. On appeal to the trial court, the
plaintiff argued that the board erred when it trans-
formed the issue of whether the claimant breached the
last chance agreement into one of determining ‘‘whether
a finding of a breach was foreclosed by the protections
of [PUMA].’’ On January 14, 2021, the defendant filed a
motion for judgment seeking dismissal of the plaintiff’s
appeal. After hearing arguments on the defendant’s
motion, the court rendered judgment in favor of the
defendant and dismissed the appeal on March 29, 2021.
In its memorandum of decision, the court concluded
that it could not ignore ‘‘the language of § 21a-408p (b)
(3), which very clearly states that an employer cannot
discharge a person solely on the basis of his status as
a qualifying patient under [PUMA]’’ and, further, that
the claimant fell under those protections. This appeal
followed.
On appeal, the plaintiff claims that the trial court (1)
erred in adopting the board’s finding that § 21a-408p
was applicable to the present case and (2) erroneously
affirmed the board’s decision, which concluded that the
claimant was not discharged for wilful misconduct.
We begin by setting forth the relevant legal principles
and applicable standard of review. ‘‘In the processing
of unemployment compensation claims . . . the
administrator, the referee and the [board] decide the
facts and then apply the appropriate law. . . . [The
administrator] is charged with the initial responsibility
of determining whether claimants are entitled to unem-
ployment benefits. . . . Appeals are taken to the
employment security appeals division which consists
of a referee section and the board of review. . . . The
first stage of claims review lies with a referee who hears
the claim de novo. The referee’s function in conducting
this hearing is to make inquiry in such manner, through
oral testimony or written and printed records, as is
best calculated to ascertain the substantial rights of the
parties and carry out justly the provisions . . . of the
law. . . . This decision is appealable to the board
. . . . Such appeals are heard on the record of the
hearing before the referee although the board may take
additional evidence or testimony if justice so requires.
. . . Any party, including the administrator, may there-
after continue the appellate process by appealing to the
Superior Court and, ultimately, to [the Appellate and
Supreme Courts]. . . .
‘‘The standard of review for judicial review of this
type of case is well established. In appeals under . . .
§ 31-249b, the Superior Court does not retry the facts
or hear evidence but rather sits as an appellate court
to review only the record certified and filed by the board
of review. . . . The court is bound by the findings of
subordinate facts and reasonable factual conclusions
made by the appeals referee where, as here, the board
. . . adopted the findings and affirmed the decision of
the referee. . . . Judicial review of the conclusions of
law reached administratively is also limited. The court’s
ultimate duty is only to decide whether, in light of the
evidence, the board . . . has acted unreasonably, arbi-
trarily, illegally, or in abuse of its discretion. . . . None-
theless, issues of law afford a reviewing court a broader
standard of review when compared to a challenge to
the factual findings of the referee.’’ (Internal quotation
marks omitted.) Mendes v. Administrator, Unemploy-
ment Compensation Act, 199 Conn. App. 25, 29–30, 235
A.3d 665 (2020).
Section 21a-408p (b) (3) provides in relevant part that
‘‘[n]o employer may refuse to hire a person or may
discharge, penalize or threaten an employee solely on
the basis of such person’s or employee’s status as a
qualifying patient or primary caregiver under [§§] 21a-
408 to 21a-408n, inclusive. Nothing in this subdivision
shall restrict an employer’s ability to prohibit the use
of intoxicating substances during work hours or restrict
an employer’s ability to discipline an employee for being
under the influence of intoxicating substances during
work hours.’’
The plaintiff first claims that the board erroneously
concluded that § 21a-408p (b) (3) was applicable in this
case even though neither the board, nor the appeals
referee, made a finding of fact concerning the reason
for the plaintiff’s discharge of the claimant. Specifically,
the plaintiff argues that ‘‘this provision would be appli-
cable only if the [plaintiff] discharged the claimant
solely on the basis of his status as a qualifying patient
under PUMA.’’8 The plaintiff’s argument is misplaced
because it would only be necessary to determine
whether an adverse employment action was made
‘‘solely on the basis of such person’s or employee’s
status as a qualifying patient’’ if the question at issue
concerned the legality of the claimant’s discharge. Gen-
eral Statutes § 21a-408p (b) (3). Here, the legality of the
discharge was not at issue. As the board aptly stated,
the issue before it was ‘‘whether the claimant’s violating
the last chance agreement constituted wilful miscon-
duct such that he is disqualified from receiving unem-
ployment benefits.’’ Because § 21a-408p (b) (3) is rele-
vant to the reasonableness of the last chance
agreement, on which the plaintiff bases its claim that
the claimant’s employment was terminated for wilful
misconduct, the board properly considered it in the
resolution of this case.
The foregoing conclusion leads us to the plaintiff’s
next claim on appeal, that the board erroneously con-
cluded that the claimant was not discharged for wilful
misconduct. ‘‘Whether the circumstances of an employ-
ee’s termination constitute wilful misconduct on the
employee’s part is a mixed question of law and fact.’’
(Internal quotation marks omitted.) Tosado v. Adminis-
trator, Unemployment Compensation Act, 130 Conn.
App. 266, 276, 22 A.3d 675 (2011).
Under § 31-236 (a) (2) (B), an individual is ineligible
for unemployment benefits if their discharge resulted
from ‘‘wilful misconduct in the course of the individual’s
employment . . . .’’ The statutory definition of ‘‘wilful
misconduct’’ includes a ‘‘knowing violation of a reason-
able and uniformly enforced rule or policy of the
employer, when reasonably applied, provided such vio-
lation is not a result of the employee’s incompetence
. . . .’’ General Statutes § 31-236 (a) (16). Furthermore,
‘‘[t]o establish that an individual was discharged or sus-
pended for wilful misconduct under this definition, pur-
suant to § 31-236-26b of the Regulations of Connecticut
State Agencies,’’ the agency must find that ‘‘the rule or
policy [is] reasonably applied in that (1) . . . the
adverse personnel action taken by the employer is
appropriate in light of the violation of the rule or policy
and the employer’s lawful business interest . . . and
(2) . . . there were no compelling circumstances
which would have prevented the individual from adher-
ing to the rule or policy.’’ (Internal quotation marks
omitted.) Seward v. Administrator, Unemployment
Compensation Act, 191 Conn. App. 578, 581 n.3, 215
A.3d 202 (2019); see also Regs., Conn. State Agencies
§ 31-236-26b (d).
The plaintiff argues that ‘‘[t]here can be no serious
question that [the last chance agreement] was reason-
able, as the claimant was a firefighter who was admit-
tedly alcohol dependent. . . . The board erred, how-
ever, by concluding that the claimant’s subsequent
status as a qualifying patient under PUMA rendered
the last chance agreement unreasonable insofar as it
applied to the claimant’s marijuana use.’’ The plaintiff
asserts that, even though, under PUMA, the claimant’s
use of marijuana was not a violation of state law, that
‘‘does not change the fact that [the claimant] breached
a last chance agreement, nor does it render that
agreement unreasonable. A contrary argument—that a
voluntary last chance agreement may only forbid crimi-
nal conduct—would be untenable.’’ We disagree.
The legality of the claimant’s conduct and the reason-
ableness of the last chance agreement are distinguish-
able legal issues with separate considerations. An
agreement between an employer and an employee can
reasonably prohibit certain, otherwise legal behaviors,
but it cannot reasonably do so in a way that runs con-
trary to state law. See Regs., Conn. State Agencies § 31-
236-26b (d) (‘‘[t]o find that a rule or policy of an
employer was reasonably applied, the Administrator
must find . . . that the adverse personnel action taken
by the employer is appropriate in light of the violation
of the rule or policy and the employer’s lawful business
interest’’); see also id., § 31-236-26b (b) (‘‘the Adminis-
trator must find that the rule or policy furthers the
employer’s lawful business interest’’ (emphasis
added)). Highlighting the unreasonable application of
the last chance agreement under the circumstances of
this case, the board concluded that the last chance
agreement became unreasonable ‘‘as of the date of the
claimant’s discharge.’’ It is undisputed that the claimant
is a qualifying patient entitled to protections under
PUMA, which likewise entails protection against
employment penalties resulting from the claimant’s
legal, off-duty use of medical marijuana.9 General Stat-
utes § 21a-408p (b) (3); see also General Statutes § 21a-
408a (a) (‘‘[a] qualifying patient who has a valid registra-
tion certificate from the Department of Consumer Pro-
tection . . . and complies with the requirements of
[PUMA] . . . shall not be subject to arrest or prosecu-
tion, penalized in any manner, including, but not limited
to, being subject to any civil penalty, or denied any
right or privilege, including, but not limited to, being
subject to any disciplinary action by a professional
licensing board, for the palliative use of marijuana’’
(emphasis added)). Consequently, the board reasonably
concluded that, insofar as the last chance agreement
operated to allow the plaintiff to terminate the claim-
ant’s employment for his palliative use of marijuana, it
was unreasonable. See Regs., Conn. State Agencies § 31-
236-26b (d). Further, the unreasonable application of
the last chance agreement to the claimant’s palliative
marijuana use forecloses the possibility that the claim-
ant’s employment was terminated for wilful miscon-
duct. See General Statutes § 31-236 (a) (16).10
Therefore, the decision of the board was not unrea-
sonable, arbitrary, illegal, or an abuse of discretion, and
the court was correct in so holding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the act has been amended by the legislature since the events
underlying this appeal; see, e.g., Public Acts, Spec. Sess., June, No. 21-1,
§ 77; those amendments have no bearing on the merits of this appeal. In
the interest of simplicity, we refer to the current revision of the act.
2
General Statutes § 21a-408p provides in relevant part: ‘‘(3) No employer
may refuse to hire a person or may discharge, penalize or threaten an
employee solely on the basis of such person’s or employee’s status as a
qualifying patient or primary caregiver under sections 21a-408 to 21a-408n,
inclusive. Nothing in this subdivision shall restrict an employer’s ability to
prohibit the use of intoxicating substances during work hours or restrict
an employer’s ability to discipline an employee for being under the influence
of intoxicating substances during work hours.’’
3
General Statutes § 31-236 provides in relevant part: ‘‘(a) An individual
shall be ineligible for benefits . . . (2) (B) [i]f, in the opinion of the adminis-
trator, the individual has been discharged or suspended for . . . wilful
misconduct in the course of the individual’s employment . . . .’’
Although § 31-236 has been amended since the events underlying this
appeal; see, e.g., Public Acts 2021, No. 21-200, § 3; those amendments have
no bearing on the merits of this appeal. In the interest of simplicity, we
refer to the current revision of the statute.
4
Although not cited in the appeals referee’s decision, the term ‘‘qualifying
patient’’ is defined by General Statutes § 21a-408 (16), which provides in
relevant part: ‘‘Qualifying patient means a person who: (A) Is a resident of
Connecticut, (B) has been diagnosed by a physician or an advanced practice
registered nurse as having a debilitating medical condition, and (C) (i) is
eighteen years of age or older . . . .’’ (Internal quotation marks omitted.)
5
Section 21a-408p proscribes the termination of a qualifying patient on the
basis of the patient’s status as such with limited exceptions. One exception
provides that termination on the basis of one’s status as a qualifying patient
is permissible where ‘‘required by federal law or required to obtain federal
funding . . . .’’ General Statutes § 21a-408p (b) (3).
The appeals referee, citing board precedent, differentiated firefighters
from public trust employees, for whom drug testing is mandated, by stating
that ‘‘[a] firefighter is hired for his skill and knowledge in fighting fires but
is not charged with protecting the public while off duty (such as public
trust employees including police officers) and his off-duty conduct does not
relate to his job duties or to a legitimate employer interest any more than
does the off-duty conduct of other municipal [employees].’’ The appeals
referee thus distinguished the present case, in which ‘‘the test taken by the
claimant was not part of a drug or alcohol testing program mandated by
and conducted in accordance with state or federal law,’’ from cases in which
employees were discharged for positive drug tests that were mandated by
law. Moreover, the appeals referee concluded that no other state or federal
law required termination of the claimant’s employment.
Another exception to § 21a-408p exists where qualifying patients are intox-
icated during work hours. See General Statutes § 21a-408p (b) (3). However,
as we explain subsequently in this opinion, that exception similarly does
not apply in the present case.
6
General Statutes § 31-236 provides in relevant part: ‘‘(a) An individual
shall be ineligible for benefits . . . (14) [i]f the administrator finds that the
individual has been discharged or suspended because the individual has
been disqualified under state or federal law from performing the work for
which such individual was hired as a result of a drug or alcohol testing
program mandated by and conducted in accordance with such law, until such
individual has earned at least ten times such individual’s benefit rate . . . .’’
7
General Statutes § 31-249b provides in relevant part: ‘‘At any time before
the board’s decision has become final, any party, including the administrator,
may appeal such decision, including any claim that the decision violates
statutory or constitutional provisions, to the superior court for the judicial
district of Hartford or for the judicial district wherein the appellant resides.
Any or all parties similarly situated may join in one appeal. . . . An appeal
may be taken from the decision of the Superior Court to the Appellate Court
in the same manner as is provided in section 51-197b.’’
8
The plaintiff also argues that, insofar as the trial court ‘‘made its own
finding as to the [plaintiff’s] reason or reasons for discharging the claimant,’’
it did so improperly and ‘‘could not properly have made any such finding’’
relying solely on the findings of fact from the appeals referee and the board.
See General Statutes § 31-249b (requiring court to rely solely on findings
of fact made by appeals referee and amended by board on appeals from
administrative unemployment benefits decisions). After our review of the
board’s decision, we conclude that the court did not depart from the findings
of fact made by the appeals referee and the board.
9
Although there are exceptions to the anti-employment discrimination
provisions of PUMA; see General Statutes § 21a-408p (b) (3) (‘‘[n]othing in
this subdivision shall restrict an employer’s ability to prohibit the use of
intoxicating substances during work hours or restrict an employer’s ability
to discipline an employee for being under the influence of intoxicating
substances during work hours’’); General Statutes § 31-236 (a) (14) (‘‘[a]n
individual shall be ineligible for benefits . . . [i]f the administrator finds
that the individual has been discharged or suspended because the individual
has been disqualified under state or federal law from performing the work
for which such individual was hired as a result of a drug or alcohol testing
program mandated by and conducted in accordance with such law, until
such individual has earned at least ten times such individual’s benefit rate’’);
the board concluded that these exceptions do not apply in the present case,
and the plaintiff has not challenged that conclusion on appeal.
10
The plaintiff also argues that the board erroneously found that there
was good cause or mitigating circumstances for the claimant’s violation of
the last chance agreement. However, because the unreasonable application
of the last chance agreement precludes the denial of benefits on the basis
of a violation thereof, we need not decide whether the claimant’s status as
a qualifying patient under PUMA qualifies as mitigating circumstances in
this case. See Seward v. Administrator, Unemployment Compensation Act,
supra, 191 Conn. App. 581 n.3 (identifying both reasonable application of
policy and absence of mitigating circumstances as required elements to
establish that an individual was discharged or suspended for wilful miscon-
duct); see also Regs., Conn. State Agencies § 31-236-26b (d).