JOHN S GOODWIN, Employee

C J W 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, the commission makes the following:

The employee worked for less than a year as a salesman for the employer, a beer distributor. He was discharged on November 21, 2003 (week 47).

The employer has a drug testing policy providing for random testing. The policy calls for discharge in the event of a positive result for an illegal drug. The employee was ordered to take a drug test on November 17, 2003. On November 21, 2003, the employee was notified of a positive result and discharged. The employee denied using any illegal substance.

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

To establish misconduct based on a positive drug test, the employer must provide either live testimony from first hand witnesses responsible for gathering and testing a urine sample or a properly certified departmental drug form which may substitute for live in-person testimony by the lab technicians who gathered the sample and did the test.

At the hearing, the employer offered a departmental drug form for the purposes of establishing that the employee tested positive for illegal drugs contrary to its policies. However the laboratory portion of the form, part II, is not properly certified by an individual with first hand knowledge of the employee's test, although the department's cover letter and the form explicitly notify the employer of the need for first hand certification. Consequently, it cannot substitute for first hand testimony from the lab scientist. The Medical Review Officer who signed both parts of the form is identified with the Kenosha clinic where the sample was collected but the sample was tested in Minnesota. The certifier was not present at the facility where the lab work was done and therefore cannot attest to the accuracy of the result. This conclusion is consistent with prior commission decisions in similar cases. (Jewson v. Home Depot USA Inc, U I Dec. Hearing No. 02005077MD (LIRC May 7, 2003)).

In Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999), the commission rejected a test result which contained a signed certification by the laboratory taking the specimen, but contained no signed certification from the laboratory performing the drug testing analysis. Consequently, the commission held the employer had not established that the proper chain of custody procedures were followed.

In Seabrooks v. The Geon Co., UI Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001), a Medical Review Officer certified results from a lab where she did not work. The drug forms contained no certification or credentials from the lab analyst who performed the test, which is expressly required by the department's form. As the commission stated in Seabrooks, "the Medical Review Officer cannot attest to those facts about which she has neither supervisory nor first hand experience. The commission therefore concludes that the employer's documents do not meet the minimum reliability standard created by the department which is necessary for them to substitute for live in-person testimony by the lab technicians who gathered the sample and did the test.

Since the employer failed to provide non-hearsay evidence that the employee tested positive for illegal drugs in violation of its written drug policy, and the employee adamantly denies such use, the commission cannot conclude that his discharge was for misconduct.

The commission therefore finds that in week 47 of 2003, the employee was discharged from his employment but not for misconduct connected with his work 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 47 of 2003, if he is otherwise qualified.

Dated and mailed August 4, 2004
goodwjo . urr : 178 : 1  MC 652.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission's reversal is not based on any differing impression of witness credibility, but due to the employer's failure to establish with any non-hearsay evidence that the employee violated its drug policy.

cc: Attorney Thomas M. Santarelli

Appealed to Circuit Court.  Affirmed February 22, 2005.     [Summary of circuit court decision]

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uploaded 2004/08/09