COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Kelsey and Haley 

Argued in Richmond, Virginia 

VIRGINIA EMPLOYMENT COMMISSION 

 OPINION BY 

v. Record No. 1216-10-1 JUDGE D. ARTHUR KELSEY 

FEBRUARY 15, 2011 

COMMUNITY ALTERNATIVES, INC. 

 AND APRIL L. COLLIER 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Leslie L. Lilley, Judge 

Cheryl A. Wilkerson, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellant. 

J. Nelson Wilkinson (David C. Burton; Williams Mullen, P.C., on 

brief), for appellee Community Alternatives, Inc. 

No brief or argument for appellee April L. Collier. 

Community Alternatives, Inc., fired April L. Collier for violating its drug-free workplace 

policy after she tested positive on a drug test. The Virginia Employment Commission (VEC) 

awarded Collier unemployment benefits. The circuit court reversed the award after concluding 

the VEC misapplied Code § 60.2-618(2)(b)(1), which precludes employees fired for testing 

positive for drug use from receiving unemployment benefits. Agreeing with the circuit court’s 

reasoning, we affirm. 

I. 

In August 2007, Collier began working for Community Alternatives, Inc. The employer 

maintained a drug-free workplace policy and required employees to submit to random drug 

screening. Collier signed the policy, verifying: “I understand procedures for testing and 

reviewing of results are conducted in accordance with recognized standards of the National 

Institute of Drug Administration.” App. at 14. Randomly selected for a drug test, Collier tested 

positive for marijuana use in September 2008. 
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The Sentara Medical Group collected the sample and forwarded it to Quest Diagnostics. 

Quest Diagnostics issued a report identifying the specimen tested, the test results, the date and 

time the sample was collected, received, and reported, and the “Certifying Scientist” who 

verified the results. The report also confirmed the specimen was received by Quest Diagnostics 

and processed in its “DHHS” certified lab. DHHS is an acronym for the United States 

Department of Health and Human Services. 

Based on the drug test results, the employer fired Collier for violating the drug-free 

workplace policy. Collier filed a claim with the VEC seeking unemployment benefits. In 

response, the employer argued Collier was ineligible for benefits under Code § 60.2-618(2)(b)(1) 

because she had been fired for misconduct. A VEC deputy claims examiner awarded benefits. 

The employer sought review by a VEC appeals examiner. 

During the telephone conference hearing, the VEC appeals examiner asked for a chainof-custody affirmation — which she explained as the “form the Claimant would sign-off on 

before giving her specimen to whoever’s conducting . . . taking the specimen.” App. at 172. The 

employer’s representative replied, “I can try to find that and . . . fax it to you if you want me to.” 

Id. The appeals examiner answered, “[i]f you do have it in her file, I would like for you to fax it 

please . . . .” Id. The employer’s representative telefaxed the separate chain-of-custody 

affirmation to the VEC about an hour after the evidentiary hearing. Collier did not participate in 

the proceeding. Nor did she file any later statements contesting the authenticity of the chain-ofcustody form or her signature on it. The VEC appeals examiner reversed the award. 

Collier then requested a full VEC review of her claim. Acting with delegated power from 

the full VEC, a “special examiner” reversed the appeals examiner and reinstated the award. The 

special examiner refused to consider the employer’s chain-of-custody affirmation because the 

telefax was received after the telephonic hearing. Because the appeals examiner did not 
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expressly “hold open the record,” the special examiner concluded, the VEC would not treat the 

chain-of-custody affirmation as an exhibit. The VEC special examiner then held the drug test 

was “insufficient” as a matter of law to establish a statutory prima facie case of misconduct 

because the test was not accompanied by a separate chain-of-custody affirmation. App. at 10. 

The VEC reached this conclusion even though Collier never challenged the chain of custody for 

her test specimen. 

The employer appealed to the circuit court arguing that neither the statute nor the VEC 

administrative regulations required a separate chain-of-custody affirmation. The employer’s 

Petition for Judicial Review also pointed out that “Collier never challenged the chain of custody 

of her test specimen.” App. at 3. The VEC expressly admitted this fact in its Answer to Petition 

for Judicial Review. See Tr. Ct. R. at 24.1

 In a commendable abundance of judicial caution, the 

circuit court nonetheless remanded the case to the VEC to clarify whether it rejected the drug test 

as factually unreliable given the specific circumstances of this case or as insufficient as a matter 

of law to constitute a statutory prima facie showing of misconduct. See App. at 33-39. 

On remand, the VEC restated its view that the statute required an employer in all cases 

(even cases in which no one contests the reliability of the drug test) to file a chain-of-custody 

affirmation in order to establish a prima facie showing of misconduct. The failure to do so, the 

VEC believed, was a fatal omission in any misconduct case based upon a positive drug test. In a 

detailed and thorough letter opinion, the circuit court reversed the VEC’s decision as inconsistent 

with Code § 60.2-618(2)(b)(1). The VEC appeals to us, asserting the circuit court erred in doing 

so. 

 1

 This factual concession constituted a binding judicial admission, conclusively 

establishing an unchallenged chain of custody. See generally Jones v. Ford Motor Co., 263 Va. 

237, 254, 559 S.E.2d 592, 600 (2002) (citing General Motors Corp. v. Lupica, 237 Va. 516, 520, 

379 S.E.2d 311, 314 (1989)). 
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II. 

 Under the Unemployment Benefits Act, “[t]he legislature intended unemployment 

benefits to be paid only to those who find themselves unemployed ‘without fault on their part.’” 

Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 568, 687 S.E.2d 99, 103 (2010) (quoting Israel v. 

Va. Emp’t Comm’n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988)). “Furthering this policy 

goal, Code § 60.2-618(2)(a) prohibits benefits ‘if the Commission finds such individual is 

unemployed because he has been discharged for misconduct connected with his work.’” Id.

Code § 60.2-618(2)(b) provides examples of disqualifying misconduct. By statute, 

misconduct includes, but is not limited to: 

An employee’s confirmed positive test for a nonprescribed controlled 

substance, identified as such in Chapter 34 (§ 54.1-3400 et seq.) of 

Title 54.1, where such test was conducted at the direction of his 

employer in conjunction with the employer’s administration and 

enforcement of a known workplace drug policy. Such test shall have 

been performed, and a sample collected, in accordance with 

scientifically recognized standards by a laboratory accredited by the 

United States Department of Health and Human Services, or the 

College of American Pathology, or the American Association for 

Clinical Chemistry, or the equivalent, or shall have been a United 

States Department of Transportation [DOT]-qualified drug screen 

conducted in accordance with the employer’s bona fide drug policy. 

The Commission may consider evidence of mitigating circumstances 

in determining whether misconduct occurred. 

Code § 60.2-618(2)(b)(1) (added to Code § 60.2-618 by 1998 Va. Acts ch. 241 and 2008 Va. 

Acts ch. 719). Subsection 2(b)(1) breaks down into a simple premise: An employer makes a 

prima facie showing of misconduct by presenting a “confirmed positive test” that satisfies three 

requirements: 

 the test was conducted pursuant to a “known workplace drug 

policy,” 

 the testing and sampling were performed “in accordance with 

scientifically recognized standards,” and 
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 the testing lab was “accredited” or the test was a DOT qualified 

drug screen. 

Id.2

 Once the employer presents a prima facie case, the burden shifts to the claimant to present 

“mitigating circumstances” which the VEC may consider “in determining whether misconduct 

occurred.” Id.

The question we must answer is whether this statute expressly or implicitly requires the 

employer to present a separate chain-of-custody affirmation to establish a prima facie case of 

misconduct. Our analysis should begin, “as always, with the language of the statute.” Meador v. 

Va. Birth-Related Neurological Injury Comp. Program, 44 Va. App. 149, 153-54, 604 S.E.2d 88, 

90 (2004) (citation omitted). Working from the statutory text, “we strive to give that language a 

‘literal construction’ unless doing so ‘would involve a manifest absurdity.’” Cent. Va. Obstetrics 

& Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 276, 590 S.E.2d 631, 638 (2004) 

(citation omitted); see also Evans v. Evans, 280 Va. 76, 82, 695 S.E.2d 173, 176 (2010) 

(restating “manifest absurdity” caveat). “[B]y literal, we mean the words should be given their 

common, ordinary and accepted understanding.” Meador, 44 Va. App. at 154, 604 S.E.2d at 91 

(citation and internal quotation marks omitted). This textualist approach presumes “the 

legislature ‘chose, with care,’ the specific words of the statute.” Kane v. Szymczak, 41 Va. App. 

365, 371, 585 S.E.2d 349, 352-53 (2003) (citations omitted). 

The text of Code § 60.2-618(2)(b)(1) nowhere states the drug test results are per se

invalid without a separate chain-of-custody affirmation. Instead, subsection (2)(b)(1) merely 

 2

 Proof of a positive drug test, however, is not the sole means of proving disqualifying 

misconduct based on drug use. See, e.g., Barkley v. Peninsula Transp. Dist. Comm’n, 11 

Va. App. 317, 320, 398 S.E.2d 94, 95 (1990) (holding the employee’s admitted drug use two 

days prior to her next scheduled work week sufficient even though the employer “never 

introduced evidence of the drug test results or evidence regarding the chain of custody of [the 

employee’s] test specimen”). 
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requires the test be performed, and the sample collected, in accordance with “scientifically 

recognized standards.” Conspicuously absent from subsection (2)(b)(1) is any freestanding 

statutory requirement that the drug test be accompanied by a separate chain-of-custody 

affirmation. Nor can the putative requirement be implied from the procedural guidelines 

governing VEC evidentiary hearings. By statute, they “need not conform to common law or 

statutory rules of evidence and other technical rules of procedure.” Code § 60.2-623(A); see also

16 Va. Admin. Code §§ 5-80-20(F), 5-80-30(D).3

It is not as if the General Assembly has never addressed the chain-of-custody concept in 

the context of scientific testing. Code § 19.2-187.01, for example, considers certificates of 

analysis issued by the “Division of Consolidated Laboratory Services, the Department of 

Forensic Science or any of its regional laboratories, or by any laboratory authorized by such 

Division or Department, . . . [as] prima facie evidence that the person receiving the material was 

an authorized agent and that such receipt constitutes proper receipt by the laboratory for purposes 

of this section.” Code § 19.2-327.1(A) addresses the “chain of custody” showing necessary for a 

felon seeking a new post-conviction scientific investigation of any human biological evidence. 

Code § 20-49.3 states the “documentary evidence of the chain of custody” essential for 

admission of genetic tests in parentage proceedings. That the General Assembly has specifically 

addressed the chain-of-custody concept on several occasions, but did not do so here, implies a 

specific legislative choice. 

In response, the VEC contends that even though “Code § 60.2-618(2)(b)(1) does not 

mention ‘chain of custody’ by name,” it can be implied from the statutory requirement that the 

testing and sample collection be performed pursuant to “scientifically recognized standards.” 

 3 Accord Snyder v. Va. Emp’t Comm’n, 23 Va. App. 484, 487, 477 S.E.2d 785, 786-87 

(1996); Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 425-26, 399 S.E.2d 630, 634 (1990). 
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App. at 43-44. We agree with the thread of reasoning underlying this argument but fail to see 

how it leads to the VEC’s conclusion. 

It stands to reason that “scientifically recognized standards” — if truly scientific and well 

recognized — would seek to ensure the sample collected for testing is in fact the sample actually 

tested. See, e.g., DHHS’s Mandatory Guidelines for Federal Workplace Drug Testing Programs, 

69 Fed. Reg. 19644 (April 13, 2004) (requiring testers to ensure the sample’s chain of custody) 

(later revisions summarized at 75 Fed. Reg. 22809 (April 30, 2010)). That truism, however, does 

not mean an accredited laboratory cannot provide certified test results without separately 

verifying this assertion. If we were to infer anything, it would be that an accredited laboratory 

would not certify its findings if they did not rest upon a secure chain-of-custody foundation. The 

absence of a separate document in addition to the certified lab results does not necessarily imply 

the lab failed to follow proper chain of custody protocols. 

However one parses the statutory language, the VEC concludes, it has consistently 

imposed a separate-document requirement affirming the chain of custody and, thus, we should 

defer to its interpretation of the statute. We decline the invitation to do so. While VEC 

factfinding receives the highest degree of appellate deference, Trent, 55 Va. App. at 567-68, 687 

S.E.2d at 103, no such deference applies to questions of law. “Pure statutory construction, a 

matter within the ‘core competency of the judiciary,’ requires de novo review.” Citland, Ltd. v. 

Commonwealth ex rel. Kilgore, 45 Va. App. 268, 275, 610 S.E.2d 321, 324 (2005) (citation 

omitted). “This axiom stems from basic principles of separation of powers. It is emphatically 

the province and duty of the judicial department to say what the law is.” Id. (citations and 

internal quotation marks omitted). “Virginia courts do not delegate that task to executive 

agencies.” Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635, 593 S.E.2d 568, 571 (2004). 
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The narrow nature of our holding, however, should not be overlooked. Like the circuit 

court, we reject only the VEC’s broad view that a positive drug test can never constitute a prima 

facie case of misconduct under Code § 60.2-618(2)(b)(1) unless accompanied by a separate 

chain-of-custody affirmation. We hold only that a positive drug test, without any additional 

chain-of-custody affirmation, presents a prima facie case of misconduct if the test complies with 

Code § 60.2-618(2)(b)(1). 

That said, we do not mean to invert the VEC’s error by implying chain-of-custody 

affirmations can play no role in the decisionmaking process. In cases where, unlike here, the 

evidence calls into question the chain of custody of the sample tested, then the VEC — like any 

other factfinder — may consider the presence or absence of a separate chain-of-custody 

affirmation in determining the probative weight of the drug test. Our holding that such 

affirmations are not legally essential to a prima facie case of misconduct leaves untouched the 

factual relevance they may have in cases where the claimant specifically disputes the chain of 

custody. 

III. 

Because the circuit court correctly interpreted Code § 60.2-618(2)(b)(1), we affirm. 

 Affirmed.