dissenting:
I respectfully dissent from the decision of the Court.
Several facts should be noted. Possession of marijuana in Idaho is a crime. Idaho Code § 37 — 2732(c)(l)(3). Merriott appeared at work with tetrahydrocannabinol (THC) in his system. THC is the active ingredient in marijuana. Merriott’s duties included operating heavy equipment such as a backhoe, front end loader, fork lift, and track loader. These facts should lead to several conclusions different from that of the Industrial Commission.
The Industrial Commission concluded that Shearer could not require Merriott to comply with its uncommunicated expectations, indicating that Merriott was not informed that use of controlled substances during nonworking hours would violate the employer’s policy. This is not a policy that requires communication. The criminal laws of Idaho say that a person shall not smoke marijuana. The fact that the smoking occurred on non-work hours is irrelevant since the active ingredient of the substance was still in Mer-riott’s body during work hours. To say, as the Commission, that Merriott was not informed that use of controlled substances during non-working hours would violate Shearer’s policy does not lead to the conclusion the Commission reaches. Merriott was informed by the criminal laws not to use marijuana at any time. The substance was still in his body when he arrived at work. That is employee misconduct as defined by the employer’s written policy. Considering the nature of Merriott’s employment it was employee misconduct regardless of whether there was a written policy.
The Commission noted that Shearer presented no evidence that Merriott was impaired while at work. The Commission talked in terms of impairment, although the policy itself prohibited an employee from being “under the influence of any chemical substance” and made the additional observation that such a substance “can impair the fitness of an employee to perform their work.” It would appear that the Commission believed that Merriott needed to stumble around or fail dexterity tests or burble to be impaired from doing his job. If that is the *624expectation of the Commission, that expectation misses the mark. As noted previously, Merriott’s duties included operating heavy equipment. 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. The potential for legal liability in the event that the employee caused harm to himself or others or simply did a bad job would seem to be significant. A plaintiffs attorney would believe that he or she had struck the mother-lode if the following questions and answers occurred in a deposition or at trial:
Question: Did you know that Merriott had smoked marijuana and tested positive for THC in his system prior to sending him out to operate heavy equipment?
Answer: Yes.
Question: And you still put him in charge of a dangerous piece of equipment, despite this knowledge?
Answer: Yes.
Whether or not Merriott showed visible signs of physical disability or mental confusion does not finally answer the question of whether he was “under the influence” as the employer drew the rule or “impaired” as the Commission interpreted the rule. A responsible employer could not send an employee out to operate heavy equipment knowing that he tested positive for the active ingredient in marijuana1. That employee is under the influence or impaired for work purposes, regardless of when the employee smoked the marijuana.
Merriott committed a crime. He then showed up to work with the active ingredient resulting from that crime in his system. He lost his job as a consequence. He now gets money from his employer in a program administered by the state that defined his conduct as criminal. His employer attempted to act responsibly in establishing a drug policy and enforcing it. 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. The result reached by the Commission in this case is not mandated by precedent, statute or logic. It turns the concepts of fairness around. An overriding public policy should say that this cannot and will not occur.
. Hypotheticals are not conclusive but may amplify the point. Does anybody want to be a passenger on an airplane with a pilot who has smoked marijuana near enough in time to test positive, or undergo surgery with a doctor in similar circumstances, or in this case be near heavy equipment operated by positive-tested Merriott?