STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID L PIEPER, Employee

CEDAR GROVE CHEESE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01001908BO


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in 9 of 2001, if otherwise qualified.

Dated and mailed July 13, 2001
piepeda . usd : 132 : 3  MC 652.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from his employment but not for misconduct connected with his work. The employer did not notify the employee that he would be discharged if he did not immediately take a retest. The employer was unaware of the fact that failure to take the test would be considered a refusal. Further, the employer never notified the employee that if the test result was positive his employment would come to an end.

The employer has no drug rules that apply to truck drivers. There is a three-month testing period at the beginning of a worker's employment that may result in a suspension until the worker is discharged. The employer does not have corresponding rules for truck drivers. The Department of Transportation Federal Motor Carrier Safety Regulations do not require an employer to discharge an employee. The consequence of a positive drug test under Department of Transportation Federal Motor Carrier Safety Regulations is that the employee is not able to perform safety-sensitive functions until the employee tests negative. There is no requirement that the employer discharge the employee.

Further, under 49 C.F.R. § 382.601 it is the employer's obligation to provide "educational materials that explain the requirements of this part and the employer's policies and procedures with respect to meeting these requirements." Specifically, 49 C.F.R. § 382.601(b)(8) requires that the materials provided by the employer include "an explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences." There is no evidence that the employer provided the employee with that information.

cc: 
Attorney James T. Winch
Robert L. Wills


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uploaded 2001/07/16