SAMUEL MAESTRE, Employee

ALLEN EDMONDS SHOE CORP, 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, 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 third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section, and the NOTE section following the DECISION section, are deleted, and the following substituted:

The employer's policies failed to place the employee on notice that he would be deemed to be under the influence of a controlled substance, and subject to discharge as a result, based on a positive drug test. As a result, the employer has failed to sustain its burden to prove misconduct.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 38 of 2003, if otherwise qualified.

Dated and mailed June 4, 2004
maestsa . umd : 115 : 1   MC 651.2   MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer's standards of conduct lists the following as grounds for disciplinary action, up to and including discharge:

Reporting to work under the influence of alcohol or unlawful drugs. Use or possession of drugs or alcoholic beverages on company premises.

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. The following employer policies/rules have been held to satisfy these requirements:

(1) Hall v. Sysco Corp., UI Hearing No. 97601931WB (LIRC Aug. 15, 1997) -- "SYSCO prohibits its employees from being under the influence of . . . any amount of . . . drugs or other controlled . . . non-prescription substances on SYSCO premises . . . or during work hours . . . ; Employees may be required to submit to a Fitness for Duty Examination, should any of the following occur: . . . Post Accident; A positive test result under any of the above circumstances will result in . . . appropriate disciplinary action . . . which may include termination."

(2) Washington v. Roundys, Inc., UI Hearing No. 97602900MW (LIRC Nov. 14, 1997) -- "Employer's Corporate Substance Abuse policy requires post-accident drug testing . . . ; If the test results are positive, the employee will be discharged immediately . . . ; It is prohibited for any employee on the Company premises or on Company time to engage in work when that employee has.unacceptable levels of an illegal substance as determined by proper screening and testing."

(3) Mading v. Metals USA Fullertown Metals Co., UI Hearing No. 02007468FL (LIRC July 21, 2003) -- policy prohibits the use, sale, manufacture, transfer or possession of drugs or alcohol on company premises and prohibits any employee from being at work under the influence of drugs or alcohol; "under the influence" defined as having a positive drug test; any employee found in violation of policy will be subject to discipline, including discharge.

(4) Hein v. Cameo Care Center, Inc., UI Hearing No. 02603347MW (LIRC September 6, 2002) -- policy prohibits the use, sale, possession or distribution of controlled substances while at work; prohibits being under the influence of a controlled substance while at work; employee who tests positive in any drug test required under the policy considered in violation of policy and subject to discharge.

(5) Bartosh v. Motion Industries, Inc., UI Hearing No. 02201209EC (LIRC Sept. 18, 2002) -- policy required anyone who operated a company motor vehicle to submit to an annual drug test, and that a positive result for illegal drugs would result in immediate termination of employment.

(6) Stushek v. Graphic Packaging Corp., UI Hearing No. 02402158AP (LIRC April 10, 2003) -- policy provides that employees reporting for work under the influence of drugs would be subject to severe disciplinary action which may include termination, and that "under the influence" includes the presence of alcohol or drugs in the body, which may be verified by laboratory tests.

The commission has held that the following employer policies do not meet the requirements set forth in Koss because the policy did not put the employee on notice that a positive test result would end his employment (Alexander) or because the policy language referenced only on-duty conduct (Betters):

(1) Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003) -- employer's policy provides that immediate termination would result for . . . coming into work under the influence of drugs;

(2) Betters v. Kimberly Public School, UI Hearing No. 02403251AP (LIRC July 29, 2003) -- policy prohibited the manufacture, possession, use, distribution, or dispensing of a controlled substance by staff at any time while on district property or involved in a district activity or event.

The policy under consideration here is very similar to that in Alexander, i.e., it simply prohibits "reporting to work under the influence of alcohol or unlawful drugs," without specifying that a worker would be deemed to be under the influence based on a positive drug test.

The only other consideration in this regard is the fact that the employment application completed by the employee includes the following language:

Some positions require applicants to submit to and pass a physical examination including a drug screening satisfactory to the company, and employees are subject to periodic re-examination which must also be satisfactory to the company.

This language is not sufficiently specific either as to the types of positions to which it applies, or as to what is considered satisfactory to the company, to satisfy the applicable notice requirement. See, Coleman v. U Line Corp., UI Hearing No. 03602548MW (LIRC Oct. 7, 2003).

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, and did not, as a result, sustain its burden to prove misconduct even if the commission were to accept the UI Drug Report forms included in the employer's petition for commission review.

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uploaded 2004/06/07