Ohio Appeals Court Denies Unemployment Compensation to Employee Who Smoked Tobacco Off Duty in Violation of Employer Policy

On Friday, the Montgomery County Court of Appeals upheld the denial of unemployment compensation to a claimant who had been terminated for violating his employer’s anti-tobacco policy.  Reidell v. The Reynolds & Reynolds Co., Inc., 2015-Ohio-1048.  In that case, the employer had adopted a policy in 2007 prohibiting employees from using tobacco products anywhere at any time (including off duty or off premises) and requiring them to remain tobacco and nicotine free.  Employees were given the opportunity to attend smoking cessation classes, which the claimant attended in 2008 when he initially quit smoking.  After he tested positive for nicotine in June 2013,  he was placed on a last chance agreement and was subjected to monthly testing at his own expense.  However, he was terminated after he tested positive again in October 2013.   The unemployment office found he had been terminated for just cause because he had notice of the  lawful policy and was adopted for legitimate reasons (in keeping down healthcare costs and promote the health of its employees).  The Court ultimately found it irrelevant that the claimant was terminated and denied unemployment compensation for engaging in lawful, off-duty conduct (i.e., smoking a cigar at home).

Under Ohio Revised Code §4141.29(D), an employee is not eligible for unemployment compensation if he or she was terminated for just cause in connection with the individual’s work. ““Just cause for discharge may be established by proof that the employee violated a specific company rule or policy, * * * so long as the policy was fair and fairly applied.”  As previously discussed by the Ohio Supreme Court:

“The [A]ct was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own.” * * *

The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, he is no longer the victim of fortune’s whims, but is instead directly responsible for his own predicament. Fault on employee’s part separates him from the Act’s intent and the Act’s protection. Thus, fault is essential to the unique chemistry of a just cause termination.

Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 697-698, 653 N.E.2d 1207 (1995).

The Claimant’s primary argument was that even if the employer’s policy was lawful, he should not be denied unemployment compensation for violating it.   While the Court acknowledged that the policy was “arguably intrusive” in that it applied to off-duty conduct, a private company is free to enact its own lawful policies. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.