dissenting:
I must dissent. Contrary to the majority’s contention, I do not believe that Blue Circle had the burden to show either that Weller was intoxicated on the job or that his ability to perform was impaired by marijuana use. Although Weller contended he was not guilty of on-the-job intoxication, he was not discharged for intoxication, a misconduct violation covered by A.A.C. R6-3-51270.10 As that regulation clearly pro*229vides, it would have been Blue Circle’s burden to show off-duty conduct affected on-duty work. Because Blue Circle did not allege such a violation, its lack of evidence on this point is understandable.
This then brings us to the real issues before both the administrative body and this court: Did Blue Circle show a violation by Weller of a company rule and, if so, is that rule reasonable?
In order to place these legal and factual issues in context, a brief review of the pertinent facts established by the record is in order. Blue Circle is a heavy industry employer that manufactures cement and cement products. Weller was employed as a heavy equipment and truck operator.
In May 1988, Blue Circle adopted a comprehensive substance abuse policy. This policy had two components: (1) rules dealing with on-premise possession of alcohol or drugs, and (2) adoption of a drug and alcohol testing program. The prohibition against on-premise possession of alcohol or drugs was to take effect immediately; violation of this rule could result in termination.
The testing program was not to become effective until approximately thirty days later, on June 15, 1988. Although refusal to take the test or failure to pass the test would result in termination, any employee with a substance abuse problem could avoid termination by notifying Blue Circle and requesting treatment prior to June 15, 1988. All of Blue Circle’s employees were informed of the institution of the substance abuse policy and the lead time for testing. Weller signed a statement that he likewise was aware of the policy.
All test results were confirmed by a test known as “gas chromatography/mass spectroscopy test (GC/MS).” An exhibit, which was introduced into evidence, describes this test as follows:
The most specific and sophisticated technique is a combination of gas chromatography and mass spectroscopy. It is the most favored as a confirmatory test because of its accuracy and reliability, with an error rate of close to zero. But, at a cost of from $30 to $75 per test, it is also the most expensive.
Employment Testing: A National Reporter on Polygraph, Drug, AIDS, and Genetic Testing, p. D:9.
Weller’s urine sample was subjected to this confirmatory test, and tested at 60 nanograms of cannabinoids per milliliter.11 In addition to Weller, 18 other employees tested positive and were terminated. There simply is no issue whether Weller violated a company policy of which he was aware and whether the company policy was uniformly enforced among all Blue Circle employees.
The majority takes the position that, regardless of this factual predicate, the policy must also be “connected with the work” and “reasonable.” In concluding that the substance abuse policy is neither connected with the work nor reasonable, the majority assumes that, unless the institution of a drug-free workplace has the probable result of lessening impairment on the job, the rule is neither work-related nor reasonable. Not only is simple logic to the contrary, so are the regulations dealing with misconduct. Unlike a discharge for intoxication, which requires on-the-job effect, misconduct involving a rule violation is not so narrow:
An employee, discharged for violating a company rule, generally is considered discharged for misconduct connected with the work.
The rule must be reasonable in light of public policy and should not constitute an infringement upon the recognized rights and privileges of workers as individuals.
A.A.C. R6-3-51485(A) (emphasis added).
Thus, under the regulation, the “connected with the work” requirement is satisfied if the worker violated a company rule that *230is reasonable in light of public policy and does not infringe upon recognized rights. Clearly, the public policy of the state of Arizona is against the use of marijuana and, contrary to the majority’s position, does not reflect an employer’s personal beliefs in morality. The criminal code makes its use, possession, or production under certain circumstances a felony. A.R.S. § 13-3405. The majority misses the point by arguing that private conduct allows illegal activity. No such public policy exists.
The majority, in an effort to counter this policy against illegal activity, points to a supposed counter-prevailing policy embodied in art. 2, § 8 of the Arizona Constitution:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
Weller has never in this court or before the administrative body contended that taking a urine sample violated this constitutional provision, which is understandable because it is simply not applicable to Blue Circle’s testing policy. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 625, 109 S.Ct. 1402, 1417, 103 L.Ed.2d 639 (1989) (the time it takes to procure a urine sample for testing cannot by itself “infringe significant privacy interests”); Winston v. Lee, 470 U.S. 753, 762, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985) (it is “society’s judgment that blood tests do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity”).12
Finally, the majority contends that a portion of A.A.C. R6-3-51485(A)(2), dealing with off-duty conduct, is applicable. This regulation provides, in part:
Rules to affect the employee’s conduct outside the employer’s premises and which could not reasonably affect the employer’s interests are generally considered unreasonable.
I question whether this regulation is indeed applicable. Blue Circle’s policy does not prohibit off-job use of marijuana; it does prohibit coming to the job with marijuana in one’s system. The question then becomes whether appearing on the job with marijuana in one’s system could reasonably affect Blue Circle’s interest. It should be observed that Weller was operating heavy equipment, where the potential for misuse could have disastrous effects. Blue Circle argues that, although its testing policy cannot detect those who are not intoxicated, it certainly can detect those who are. This issue aside, it appears to me that the potential of employees who are marijuana users causing harm to Blue Circle’s business is, on its face, a sufficient justification to ask for a drug-free work environment and to at least place the burden on the employee to come forward with evidence that marijuana use and its detection can never show impairment. This Weller did not do. I therefore would find A.A.C. R6-3-51485(A)(2), if applicable, to have been violated.
One final comment needs to be made. The majority seems to contend that Weller’s denial of marijuana use, coupled with his lack of a criminal record of drug use, is sufficient to overcome the test result of marijuana in his system or at least make the evidence equally balanced. The weight to be given the evidence in this case is for the Board, not this court. Because refusal to take the test was also grounds for termination, Weller’s bravado in subjecting himself to the test is both understandable and a circumstance to be considered by the trier of fact.
I would affirm.
. R6-3-51270 provides, in part:
A. When a claimant is discharged for ... using illegal drugs at work, or reporting to work ... under the influence of intoxicants, a disregard of the employer’s interest may be established.
B. A discharge for intoxication off the job is not disqualifying unless it can be shown that a claimant’s off-duty intoxication is connected with his work____ (Emphasis added.)
. The majority contends that such a "positive" showing of marijuana is purely subjective. However, no attack was made by the claimant before the administrative agency that this threshold showing was improper.
. The majority states those cases support their position, which I will not take the time to dispute. The point is, the issue of invasion of privacy was not raised except by the majority. The majority raises this solely on its own, again without allowing an adversarial confrontation on the issue. Thus, the court has not had the benefit of counsels' input as to whether the majority or the dissent is correct.