concurring in result.
While I agree that the judgment appealed should be affirmed I think the decision should rest on the controlling law and the facts developed at the Commission level.
First of all, emphasis should be placed on the well-established rule that the mere fact *910that an employee’s violation of a company rule or policy justifies termination does not ipso facto operate to disenfranchise his entitlement to unemployment compensation benefits. The pertinent language of the involved statute is this: “An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission.” 40 O.S.1981 § 2-406. The term “misconduct” as used in § 2-406 has been judicially construed to require a showing of:
“conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.”
Vester v. Board of Review of Oklahoma Employment Sec. Comm’n, 697 P.2d 533, 537 (Okl.1985) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)). And as a further guide for the dispensing of unemployment benefits, Ves-ter alluded to the public policy underlying the Employment Security Act, 40 O.S.1981 §§ 1-101 through 9-104, which is “to provide some form of relief to those unemployed through no fault of their own.”
Secondly, the lack of evidence before the Board of Review to support a § 2-406 misconduct charge should be emphasized. Subject employee had been a good one for six-and-one-half years without a blemish on his record. Then one day he returns from a two-week leave and responds to a request for urine testing. The result was reported to be positive and the employee was fired. And, even though the employee steadfastly maintained he had taken no drugs, and even though there was no evidence of any “odd, erratic or potentially unsafe behavior” on the day he returned to work, it does not appear that the matter was discussed with the employee, or that there was any retesting, or that any other effort was made to determine whether an error might have been made.
I recognize that the employer has a right, indeed a duty, to invoke all appropriate measures to protect its employees and property from harm caused by physically or mentally impaired workers. But at the same time the rights of workers are also entitled to protection. Testing errors can occur, urine specimens can be switched, and false positive results have been known to happen. An employee should, therefore, have a right, for instance, to obtain part of a urine specimen for independent testing in case the employer reports an adverse result. Proof of a testing error may not save the employee’s job but it may help protect his work record and ameliorate the damage resulting from the impact of being discharged for drug abuse.
Finally, it should be noted that the result we reach parallels that reached by the court in the factually similar case of Independent School District No. 1 v. Logan, 789 P.2d 636 (Okl.App.1989).