STEVE HUTCHERSON, Employee

FRANTZ CO INC, Employer

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, and after consultation with the ALJ, the commission makes the following:

The employee worked for a year and ten months for a manufacturer of wood by-products. His last day of work was on June 16, 2003 (week 25).

On February 11, 2002, the employee tested positive for illegal drugs following a work injury. He was suspended and then reinstated with the understanding that he would submit to random drug testing as a condition of his employment. On June 13, 2003, the employee was absent without notice. He was suspended on June 16, 2003 and told to report to a clinic for a drug test. The employee told his supervisor that his car was in the shop and he had no way to get there. There was no public transportation to the clinic and the employee did not have money for a cab. The supervisor said it was his responsibility. The employee picked up his car that evening and reported for the drug test at 8:00 a.m. the next day. He was told at the clinic that he would not be tested and to report to the employer. He was then discharged by the employer for failing to submit to a drug test.

The issue before the commission is whether the employee was discharged for misconduct connected with his employment.

The employee did not intentionally fail to appear for his drug test. He was unable to arrange for transportation until the next day. He told his supervisor this. He was not notified that he would be discharged if he failed to get the test the same day. First thing the next day, the employee made a good faith effort to comply with the employer's demand. Unless the employer put the employee on notice that he was in danger of losing his job, he had no reason to take extreme measures to arrange transportation to the test.

Therefore, the commission finds that the employee's discharge was not for misconduct connected with his employment. The employee lacked any intent to harm the employer's interests and had genuine difficulty complying with the testing requirement on the day in question.

The commission therefore finds that in week 25 of 2003, the employee was discharged but the discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2003, if he is otherwise qualified.

Dated and mailed February 27, 2004
hutchst . urr : 178 : 1  MC 652.2  MC 652.9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission consulted with the ALJ prior to reversing. The ALJ credited that the employee did not have a car or public transportation available to him on the day of the test. However, he believed that the employee should have taken greater measures to comply. The commission disagrees for the reasons stated above.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/03/x02x