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

GERALD S JEWSON, Employee

HOME DEPOT USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005077MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for two and a half years as a professional sales associate for a retail home improvement store. His last day of work was May 27, 2002. He was discharged on May 31, 2002 (week 22).

The employee had a forklift accident on May 24, 2002. The employer's drug policy requires a post accident drug screen. The employer was notified by e-mail of a positive result for marijuana. The employee was discharged based on the positive test result. The employee denies using marijuana or other illegal drugs.

The issue in this case is whether the employer proved the employee was discharged for misconduct connected with his employment.

To establish misconduct based on a positive drug test, the employer must provide either live testimony from first hand witnesses responsible for gathering and testing a urine sample or a properly certified departmental drug form which may substitute for live in-person testimony by the lab technicians who gathered the sample and did the test.

In this case, the employer did not bring a certified departmental drug form to the original hearing and the ALJ continued the hearing to allow the employer to provide the necessary evidence. At the continued hearing, the employer offered a properly certified Part I of the department drug form, signed by the individual who collected the sample that the appropriate procedures were followed. However, Part II contains no certifying signature attesting to the validity of the lab results. It appears that the intended certifier was a medical review officer in California, although the testing lab was in Illinois.

Since this form is not certified, it cannot substitute for first hand testimony from the lab scientist. Moreover, if it had been signed by the identified party, it would still be insufficient because the intended certifier was not present at the facility where the lab work was done and therefore cannot attest to the accuracy of the result. This conclusion is consistent with prior commission decisions in similar cases.

In Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999), the commission rejected a test result which contained a signed certification by the laboratory taking the specimen, but contained no signed certification from the laboratory performing the drug testing analysis. Consequently, the commission held the employer had not established that the proper chain of custody procedures were followed.

In Seabrooks v. The Geon Co. U I Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001), a Medical Review Officer certified results from a lab where she did not work. The drug forms contained no certification or credentials from the lab analyst who performed the test, which is expressly required by the department's form. As the commission stated in Seabrooks, "the Medical Review Officer cannot attest to those facts about which she has neither supervisory nor first hand experience. The commission therefore concludes that the employer's documents do not meet the minimum reliability standard created by the department which is necessary for them to substitute for live in-person testimony by the lab technicians who gathered the sample and did the test. Had the department's form been properly executed, the employer would have met its evidentiary burden. Since it has not, the commission affirms the appeal tribunal decision."

Since the employer failed to provide non-hearsay evidence that the employee tested positive for illegal drugs in violation of its written drug policy, the commission cannot conclude that his discharge was for misconduct.

The commission therefore finds that in week 22 of 2002, the employee was discharged but that the discharge was not for misconduct connected with his work for the employer, under Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2002, if he is otherwise qualified.

Dated and mailed May 7, 2003
jewsoge . urr : 178 : 1  MC 652.4  PC 714.07 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. It reaches its decision not based on any differing assessment of witness credibility but as a matter of law.

cc: Home Depot (Delafield, Wisconsin)


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uploaded 2003/05/07