dissenting:
I respectfully dissent from the Court’s opinion.
In my view the employer Shearer could define the term “under the influence of any chemical substance or alcohol during working hours” as equivalent to testing positive for a controlled substance in a drug test administered during working hours. The administration of the drug test was Shearer’s chosen means of implementing its substance abuse policy. The purpose of the policy is to:
prohibit drug and alcohol abuse. This prohibition is based on a number of concerns, some of which are: the physical safety of all employees; medical insurance costs; the welfare of the employee and his or her family; loss of productivity as well as potential damage to plant or equipment.
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. Thus, the issue whether Merriott appeared impaired at work, in the sense of impairment in the “driving under the influence” context was irrelevant to whether Merriott violated the substance abuse policy, as was the issue of whether he used marijuana during non-working hours.
Accordingly, I would reverse the decision of the Industrial Commission and deny unemployment compensation benefits to Mer-riott on the basis that he was discharged for work-related misconduct.