Is a Discharged Pharmacist Eligible for Unemployment Benefits?

Pharmacy Times, November 2019, Volume 85, Issue 11

The court rules that the employee did not engage in willful misconduct, affirming the compensation board's decision.

ISSUE OF THE CASE

If a long-serving pharmacist was terminated for violating his employer’s policy about “breaking the law” and he files successfully for unemployment compensation, will the courts uphold a challenge to that administrative decision about eligibility?

FACTS OF THE CASE

A pharmacist in a Middle Atlantic state had worked for a pharmacy chain for 28 years. He was discharged for allegedly violating a written policy of the employer prohibiting employees from breaking the “law.” Those quotation marks were used by the court when referring to a board of pharmacy regulation, perhaps to differentiate them from statutes which truly are “the law.” The legal standard that the pharmacist allegedly breached was a board regulation specifying that pharmacy technicians are prohibited from “accepting or transcribing an oral order or telephone prescription ...”

The employer’s position was that the pharmacist had violated the law on 2 occasions by permitting a tech with whom he worked to call a prescriber to request “clarification” of issues related to prescriptions presented for dispensing. One instance involved a call to clarify the prescriber’s intent when a prescription had been issued for oral contraceptives “for 21 or 28 days.” In the other instance, the tech called the prescriber about directions for use for the prescription container label that read, “Take 2 as directed; take as directed on package.”

About 2 weeks after being terminated, the pharmacist filed an application for benefits under the state’s unemployment compensation program. The local office of the agency that administered that program issued a ruling that the pharmacist’s conduct was not equivalent to willful misconduct, and as a result, he was eligible for unemployment benefits. The employer appealed that administrative determination, and a hearing was held. The administrative law judge who conducted that hearing ruled that the decision of the local office was correct: The pharmacist was eligible for benefits. The statewide unemployment compensation board affirmed that ruling. Having a different view of the situation, the employer elevated the issue to an appellate court that reviews matters involving decisions and actions of state agencies.

THE RULING

Characterizing the appeal as the employer basing the claim of willful misconduct on violation of a work rule, the appellate court upheld the ruling of the administrative agency that the pharmacist was eligible for coverage under the state unemployment benefits program.

THE COURT'S REASONING

The court began its review by emphasizing that where an employer has based “a claim of willful misconduct on the violation of a work rule, it bears the burden of proving the existence of a reasonable work rule and its violation.” An additional burden of proof for the employer is having to show a deliberate or intentional violation of that rule. All relevant circumstances are to be considered.

The appellate court adopted the reasoning of the review board that the regulations in question did not apply to the situation because the prescription had already been written by the prescribers. This meant that they were not “an oral order or telephone prescription” subject to the board of pharmacy regulation. Thus, the employer could not meet its burden of proof to show that the terminated pharmacist had violated the regulation it was citing.

Moreover, the court agreed with the pharmacist that he did not violate the work rule, because he had asked the tech to make the phone calls for clarification, not to actually take prescriptions. The court noted that without clarification, the prescriptions were “effectively meaningless.” In its view, the tech was contacting the prescribers to get additional information to aid the pharmacist’s interpretation of an existing prescription.

The ultimate decision of the court was that the pharmacist’s conduct was not willful misconduct and, therefore, the decision of the unemployment compensation board that he was eligible for benefits was affirmed.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.