Richmond Public Schools and other employers who fail to follow their agency’s own drug policy cannot prevent alleged violators from collecting unemployment benefits, the Virginia Employment Commission has ruled.

In a precedent-setting case, VEC Special Examiner Susan M. Batte wrote on behalf of the commission that an RPS employee who failed to pass a drug test and was dismissed for cause can qualify for benefits.

The decision overturns a lower VEC administrative judge’s denial of benefits based on the failed drug test.

“The commission takes no issue with the employer’s business decision to discharge the claimant,” Ms. Batte wrote in the Sept. 9 opinion, “However, failure to meet the requirements of its own policy precludes a finding that the claimant was discharged for misconduct.”

The employee, whose name is being withheld to protect her privacy, was hired as a math specialist, but was dismissed five weeks after starting work in late January after testing positive for cocaine. She claimed that she was taking a medication that created a false positive.

RPS contested the employee’s claim to unemployment benefits. She appealed to the full commission after losing the first round.

Ms. Batte wrote that RPS’ policy requires that all drug testing procedures “shall … be developed in accordance with Procedures for Transportation Workplace Testing Programs,” but she found that the U.S. Department of Transportation procedures were not followed.

RPS “was unable to provide an explanation for why it did not provide the claimant a DOT test as required … but instead relied on upon the understanding” of the contractor who conducts the tests of “past practices.”

That contractor “is not an employee of (RPS) and was not governed by the policy or responsible for enforcing it. Consequently, the commission concludes that in order for an employer to present a … case of misconduct, it needed to show the sample was collected and performed in accordance with its own policy.”

Ms. Batte added that the VEC strictly construes the policies of an employer contesting unemployment benefits. In the case of RPS, “there is no exception” to the requirement for a DOT drug test in the policy, and, thus, RPS had no justification for not following that policy.