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


DWIGHT ANDERSON, Employe

GROVE GEAR DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96602665RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately eight months as a janitorial maintenance worker for the employer. The employe's last day of work was April 2, 1996 (week 14).

The employe originally worked for a temporary agency at the employer's site. He was offered a permanent job contingent on submitting to a drug test. On May 27, 1995, the employe admitted to the employer that he had smoked marijuana the previous weekend. Although the employe remained subject to a pre-employment drug test, the employer additionally required as a condition of employment that the employe undergo a random drug test within a year of hiring. The employe signed an agreement to this effect on June 5, 1995. The employe submitted to the pre-employment drug test and the result was negative. The employe began working for the employer on or about June 5, 1995.

On March 29, 1996 the employe injured his knee while stepping down from a ladder. The employe reported his injury to his supervisor. The employe's supervisor referred him to a clinic to be examined and treated for his knee. His supervisor also informed the employe that while he was at the clinic he would have to undergo a random drug test. The employe resented the request to submit to a drug test while having his knee examined. At the clinic the employe was offered an opportunity to take the drug test. The employe refused.

The following workday, Monday, April 1, 1996 the employe had scheduled time off (long before the work related injury) to have an out-patient procedure conducted at a local hospital. While the procedure was being conducted, the employe had an allergic reaction to the anesthetic and got quite ill. The employe testified that he almost died. Consequently, his recheck for his knee and the scheduled drug test were postponed until the following day, Tuesday, April 2. However between Monday and Tuesday, the employer contacted the employe's fiancee' and told the employe to report to work before appearing at the clinic. The employe did so and on Tuesday, April 2, the employer informed the employe that he had been discharged for failing to take the drug test on Friday, March 29th when requested to do so.

The issue for review is whether the employe's refusal to take the drug test serves as a basis for ineligibility for benefits. More specifically the issue is whether the employe quit or whether he was discharged when he refused to submit to the drug test on Friday, March 29, 1996.

The agreement the employe signed stated the following: "due to my self admittance of illegal drug use on Saturday, May 27, 1995, I agree to undergo one random drug test during the next calendar year. I understand that this is a condition of my employment and that if I were to test positive for a controlled substance in the future, my employment will be terminated." This agreement was signed by the employe on June 5, 1995.

The issue of whether refusing to take a drug test constitutes a quit or a discharge has been debated over the years. In December of 1995, the department revised its internal policy on this issue. See UC-Benefits Operations Manual, Volume 3, Part 7, Chapter 2, page 14. The department generally treats a refusal as a discharge for misconduct if a reasonable written rule exists. The department provides that a "reasonable written rule" is one which is made available to the employe and informs the employe of both the existence or the rule and provisions of the rule or is mandated by state or federal law and the employe is aware of that mandate. The department does provide that a refusal may not be considered misconduct if the refusal is reasonable. The department concedes that this is a fairly unusual situation but examples may include a refusal because the employe was required to pay for the test or because the rule provided for the testing of designated "safety positions" and the employe's position was not so designated.

Applying this written policy to the facts at hand, the ALJ concluded that the employer had no written rule of general application governing random drug tests. The employer admits that this is true. The only rule the employer has, which is unwritten, is that potential employes submit to drug tests prior to beginning employment. The employer concedes that it does not have any written work rules regarding random drug testing for its employes. Furthermore, the ALJ found that there was no evidence that the required test was mandated by government licensing or regulatory requirements. This is also true. Nonetheless, the fact remains that this employe accepted random testing as a condition of his employment.

In general the commission agrees that a refusal should be treated as a discharge when an employer has a reasonable written rule in place. This did not occur here. Rather, the employment relationship was governed by a written agreement requiring random drug testing as a condition of this specific employe's hiring. Therefore, when the employe refused to take the drug test on Friday, March 29, the commission believes that the employe was the moving party in the employment separation and evinced conduct inconsistent with the employment relationship in direct violation of this written agreement and thereby quit. Dentici v. Ind. Comm., 264 Wis. 181, 186 (1953). (1)

Concluding that the employe voluntarily terminated his employment, the next inquiry is whether the employe's refusal constitutes "good cause attributable" to the employer for quitting within the meaning of section 108.04(7)(b), Stats. Although the employe's immediate circumstances involving his injury were regrettable, the employer informed the employe before he left for the clinic that he would be subject to a drug test there and that his job would be in jeopardy if he failed to provide a specimen. Perhaps, had the employe's injury been more serious or an emergency, the employe's refusal may not have been reasonable. However, based upon the evidence, the employe could have provided a specimen had he chosen to do so. Under these circumstances, the commission believes that the employe voluntarily terminated his employment by refusing to take the drug test and that his refusal under these circumstances was unreasonable and fails to provide him with any exception to the quit disqualification found in section 108.04(7)(b), Stats.

The commission therefore finds that in week 14 of 1996, the employe voluntarily terminated his employment but not for good cause attributable to the employer within the meaning of section 108.04(7)(b), Stats., or within any other statutory exception that would allow benfits.

The commission further finds that the employe was paid benefits amounting to a total of $2,609 for which he is not eligible and to which he is not entitled, within the meaning of section 108.03(1), Stats. Pursuant to section 108.22(8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22(8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04(13)(f), Stats., the overpayment was not the result of a department error. See section 108.22(8)(c)2., Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 14 of 1996 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the amount of $2,609 to the Unemployment Reserve Fund. $55 is restored to the forfeiture balance.

Dated and mailed: August 16, 1996
anderdw.urr : 135 : 3   MC 652.2

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge because it did not reverse on the basis of witness credibility or demeanor. Rather the commission reaches a different legal conclusion upon essentially the same set of facts as found by the administrative law judge. Consequently, a credibility conference was not necessary. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-284 (1972).

The commission is satisfied that the employe quit his employment when he refused to submit to a drug test. Although the department generally treats such refusals as discharges, the employer did not have any written rule in place regarding procedures for random drug testing. Rather this specific employe, as a condition of employment, signed an agreement whereby he would submit to one random drug test within a year of his hiring. The employer's request under the circumstances was not unreasonable and the employe's refusal does not constitute an exception to the quit disqualification found in section 108.04(7)(a), Stats.


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Footnotes:

(1)( Back ) As the supreme court held in Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980), the statutory concept of voluntary termination is not limited to the employe who says "I quit" and conversely it may encompass a situation where the employer discharges the employe, such as what occurred here.