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

PATRICK D MCNAMER, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401833SH


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, except that it makes the following modifications:

The second paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows in order to correct an error:

On February 7, 2003 (week 6), the employer suspended the employee pending the results of its investigation of his alleged violation of the employer's substance abuse policy. The employer discharged the employee effective February 26, 2003 (week 9).

The word "metabolites" is added to the end of the last sentence of the fifth paragraph of the Findings of Fact and Conclusions of Law section for purposes of clarification.

The seventh paragraph of the Findings of Fact and Conclusions of Law section is deleted, and the following substituted in order to clarify the commission's decision rationale:

The employer failed to prove that the employee was actually impaired when he reported to work on February 7, 2003, or that he knowingly violated a reasonable employer rule prohibiting off-duty use of illegal drugs.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2003, if otherwise qualified. The issue of the employee's ability and availability to work on and after February 7, 2003, is remanded to the department for determination if it has not already been resolved.

Dated and mailed March 12, 2004
mcnampa . umd : 115 : 3  MC 651.2  MC 651.4 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee had been granted medical leave by the employer for the periods 5/30/02-9/3/02, 10/7/02-11/7/02, and 12/10/02-2/7/03, to permit him to obtain outpatient treatment for substance abuse. Such treatment was unsuccessful. The employee's treating physician recommended as a result that the employee enter inpatient treatment and he was placed on a waiting list for an inpatient facility. The employee requested as a result that his medical leave be extended but the employer denied this request and required him to report to work on February 7, 2003. The employee reported, was sent for a drug test, and tested positive for cocaine metabolites. The employee was suspended for investigative purposes from February 7, 2003, through February 25, 2003, and terminated effective February 26, 2003, for violation of the employer's substance policy. The employee was admitted to a detoxification facility on 2/15/03 and remained there until he was admitted to inpatient treatment on 2/20/03 where he remained through 4/16/03. His treating physician during this inpatient treatment completed a department form (exhibit #6) on which he indicates that the employee was diagnosed with and treated for drug dependence.

The employer's substance abuse policy (exhibit #2) states, as relevant here:

SBC is committed to maintaining a healthy and safe work environment..

Drug and alcohol abuse threatens SBC's safety and goals and the existence of a productive and efficient workplace..

SBC also prohibits the illegal use, possession, sale, attempted sale, conveyance, distribution, or manufacture of illegal drugs or controlled substances while engaged in any company activity, on company premises, or in company vehicles.

Employees are forbidden from reporting to work, driving on company business or driving a corporate vehicle while under the influence of alcohol or any illegal drug.

The employee appears to be contending here that he was unable to control his drug use and, as a result, could not have formed the requisite intent to violate the employer's substance abuse policy, as required for a finding of misconduct pursuant to Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941). However, such inability is required to be established by competent medical evidence (Clark v. Reynolds Wheels, Int'l., UI Hearing No. 02005123JV (LIRC Jan. 31, 2003)). The only competent medical evidence of record in this regard relates solely to the employee's medical condition on and after February 20, 2003.

However, the employer failed to prove that the employee violated its substance abuse policy, by showing either that the employee was actually impaired, i.e., under the influence, on February 7, 2003, or that the employee was on notice that off-duty drug use, as established by a positive drug test, was prohibited by the employer and could result in his discharge.

The employer's evidence that the employee's eyes seemed "glazed" and he appeared anxious is insufficient to show actual impairment under the circumstances here.

In Koss v. Menonomee Indian Tribe, UI Hearing No. 97-400031 (LIRC April 10, 1998), the commission held that, in order to deny benefits for off-duty drug use based on a positive drug test, the employee must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs, and, to be reasonable, the employer's rule must prohibit both on-duty and off-duty use of illegal drugs, be known to the employee, be set forth in writing, and spell out the consequences of a positive test result. Like the employer's substance abuse policies in Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003), and in Coleman v. U Line Corp., UI Hearing No. 03602548MW (LIRC Oct. 7, 2003), the employer's policy here is sufficiently ambiguous to compel the conclusion that the employer did not place the employee on notice that off-duty drug use, as measured by a positive drug test result, could result in his discharge.

The commission concludes as a result that the evidence of record shows that the employee was discharged on February 26, 2003, but not for misconduct, and would be eligible for benefits beginning on that date as a result. The commission notes that the employee would also be eligible for benefits during the period of time he was suspended for investigative purposes, i.e., February 7-25, 2003. See, Simmons v. Jewel Food Stores, Inc., UI Hearing No. 01608998MW (LIRC Mar. 27, 2002).

cc: Samuel Butler


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