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

LAURA A HARRIS, Employee

CB DISTRIBUTORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003457JV


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 week 14 of 2003, if otherwise qualified.

Dated and mailed March 23, 2004
harrila . usd : 125 : 1  MC 651.2  MC 652.9  MC 652.2

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In August 2002 the employer announced a policy of "0 tolerance to the use of illegal drugs" and that it would be performing random testing of employees immediately. Under the employer's policy on use of illegal drugs any employee who violates the policy will be subject to one week off without pay for the first offense and immediate discharge for a second offense.

On February 25, 2003, the employer's operations manager chose the employee for a random drug test. However, the employee informed the operations manager that she would not pass the drug test, and that she would save the company money and not go for the drug test. She was therefore suspended from work for one week.

The employee returned to work from her one-week suspension on March 5, 2003.

On March 28 the employer's owner became upset with the employee over an error she had made with an order and accused her of using drugs. She was sent for another drug test that day. The employee's drug test came back positive for use of marijuana. She was discharged on April 2 because of the positive result of the drug test taken on March 28.

The ALJ found that the employer's drug policy did not put its workers on notice that off-duty drug use could cause a positive test. The ALJ also noted the employee's assertions that she had not used drugs for the one-month period since February 25 and that the March 28 test results were so low that it picked up the prior use for which she had already been disciplined. Further, the ALJ found that the second drug test was not a random test, but a for cause test, and that there was no direct evidence that the employer's owner had just cause for selecting her for a test under its random drug test policy.

On appeal the employer frames the issue as follows: "Does being under the influence of a drug constitute misconduct connected with employment?"

The employer argues that off-duty conduct may have an on-the-job effect and may thereby be considered misconduct connected with employment, citing Miller Compressing v. Flowers, Case No. 88-CV-017755 (Wis. Cir. Ct., Milw. Co., Oct. 4, 1989). The employer argues that the nature of the employee's work involved a fair amount of detail work and that an employer may reasonably believe that one under the influence of a marijuana may not be efficient or perform the job tasks appropriately. However, the fact that the employee tested positive for marijuana metabolites does not indicate that she was under the influence of marijuana at the workplace. Rather, the presence of metabolites establishes only that the employee had ingested marijuana at some point while off duty. Yarbrough v. Auer Steel & Heating Supply (LIRC, 11/19/03).

Next, the employer argues that it does not believe an employer must recite in writing or otherwise what is patently obvious. While the employer argues that it does not believe it is necessary that its drug policy recite in writing that off-duty drug use could result in a positive test, the commission has held that in order to deny benefits for off-duty drug use based on a positive 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. Yarbrough, citing Betters v. Kimberly Public School (LIRC, 07/29/03); Koss v. Menominee Indian Tribe (LIRC, 04/10/98). The employer's drug policy is silent as to whether that policy included a prohibition against off-duty illegal drug use, and the employee's testimony is ambiguous as to whether or not she knew that the employer's drug policy prohibited off-duty use of illegal drugs.

Next, addressing the employee's assertion that her drug test results were so low that it had picked up prior use for which she had already been disciplined, the employer argues that the record does not support such conclusion. The employer argues that the "prior discipline was approximately one month earlier," that the test results show the employee to have been under the influence and that one could reasonably believe that approximately a month period of time between tests would have been sufficient for any earlier traces to have cleared the system. The employer's arguments fail. First of all, it again must be noted that the fact that the employee tested positive for marijuana metabolites does not indicate that she was under the influence of marijuana at the workplace. Second, the employee's second drug test was administered exactly 30 days from her first drug test. The commission has noted in past cases that metabolites for some drugs can stay in the system for up to 30 days. Castona v. Kelly Services, Inc. (LIRC, 05/24/01). In fact, page two of Exhibit 1, titled "Controlled Substances-Uses and Effects," appears to indicate that "2 days-11 wks" is the period in which metabolites for marijuana may be detectable after marijuana use.

Finally, addressing the ALJ's finding that the second drug test was not a random test but a for cause test for which there was no just cause, the employer argues that given that the employee had previously refused to take a drug test, that the employer had a statement from co-workers that raised a suspicion over her usage of drugs and that apparently she was making an error in filling an order, it seems most reasonable the employer could ask the employee to submit to a drug test. These arguments also fail. The employee had not previously "refused to take a drug test" in the sense that the employer apparently seems to imply. The employee had informed the employer that she would not pass the drug test, and therefore she would save the company money and not take the drug test. Further, with respect to the employer's reference to a statement from co-workers (Exhibit 1, page 14) that allegedly raised a suspicion over drug use by the employee, in addition to being hearsay, the statements contained therein pertained to alleged comments the employee made about drug use in January 2003, which was before the employee had been selected for her first drug test on February 25, 2003. Finally, regardless of whether the employer believed that the employee had made an error in filling an order which therefore justified asking the employee to submit to a drug test, the evidence strongly indicates that the marijuana metabolites picked up in the employee's second drug test was the result of her prior use of marijuana for which she had already been disciplined. The employee testified that she could not believe it when the drug test came back positive. Referencing the time period between her February 25 and March 28 drug test, the employee testified that "In that time period, I made sure I was not exposed to [marijuana] at all." The employee testified that she valued her job more than anything, that she enjoyed the people she worked with and that "I'd be stupid once, but not twice." Further, as previously noted, the employee's second drug test was administered exactly 30 days from her first drug test, and marijuana metabolites can remain in a person's system for this period of time.

Based upon the foregoing, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Robert G. Krohn


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