Thomas O'Connor & Co., Inc. (employer), appeals from a judgment of a District Court judge that affirmed a decision of the board of review (board) in the defendant department. The board determined that the other defendant, Richard Roy (employee), was entitled to unemployment compensation benefits. We transferred the appeal here on our own motion.

The employer claims that the board erred in concluding that the discharge of the employee was not attributable "to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer." G. L. c. 151A, s. 25 (e) (2) (1994 ed.). The employer asserts that the employee violated its policy against (1) the use of illegal drugs, (2) being under the influence of illegal drugs, or (3) purchasing, selling, possessing, distributing, or dispensing drugs or alcohol, while in each instance at work. There is, however, no such evidence.

The employee was obliged to submit to a drug screening analysis after he returned from a leave of absence in December, 1992. The result of that test showed that the employee had used a "morphine-like" substance. There was no evidence that the employee used illegal drugs, had illegal drugs, or was under the influence of illegal drugs while at work. In the absence of evidence to that effect, the test results would not support a finding that the employee knowingly violated a reasonable and uniformly enforced rule of the employer. A positive drug test result is not alone sufficient to establish a violation of the employer's drug policy.

Judgment affirmed.

This appeal, which we transferred here on our own motion, presents the same substantive issue that we decided in Thomas O'Connor & Co. v. Commissioner of Employment & Training (No. 1), ante 1007 (1996). The employer is the same. The policy concerning drugs in relation to the workplace is the same. The agency's decision was the same, awarding

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unemployment compensation benefits to an employee. The same District Court judge affirmed the agency decision. The employee is different, but the circumstances of his situation are even less favorable to the employer than in the previous case because the employee was tested for drug use when he was hired. These test results showed that the employee had used marihuana, and the employer discharged the employee when it received the results of the test one week after the employee started work.

It would be impossible for an employer to prove a violation of its workplace-related drug policy solely by the proof that before the employee was hired he had used a controlled substance. Moreover, there was no evidence that the employee did anything while at work in violation of the employer's drug policy. The agency decision to award the employee unemployment compensation benefits was correct.

Judgment affirmed.