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

EUGENE E BUTTERFIELD, Employee

COVENANT HEALTHCARE SYSTEM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600251MW


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, if otherwise qualified.

Dated and mailed July 28, 2005
butteeu . usd : 178 : 1    MC 651.2  MC 652.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee was discharged both for violating its reasonable drug and alcohol policy and also for violating his last chance agreement. It asserts that the last chance agreement lowers the burden of proof for the employer and cites numerous drug testing cases in support of its contention.

The commission has carefully considered the employer's arguments but distinguishes the case at issue here from those cited by it. As the ALJ pointed out, the employer's rule and last chance agreement seek to restrict the employee's use of a legal substance while off duty. While the employer argues otherwise, the commission believes that this significantly distinguishes the employee's circumstances from those in the cited cases which deal with illegal substances.

The employer also asserts that the employee must have been very intoxicated during his off duty hours if he still had a slight, though measurable blood alcohol content at work the next day. The employee's last chance agreement did not contain an absolute prohibition on the employee's use of alcohol. Last chance agreements banning any use of alcohol have been found reasonable in some cases in which the employee had a long standing addiction issue and his sobriety was necessary to insure his ability to work for the employer at all. There is no evidence in this record to support the appropriateness of such an absolute prohibition here.

Finally, the employer has not established the reasonableness of its low BAC threshold for purposes of establishing a positive test for alcohol. While the employer is justified in proscribing alcohol impairment at its work place, a BAC of .02 has not been demonstrated to correlate with any customary standard of impairment. The employer's requirement that the employee adhere to this standard was not reasonable nor was it necessary to accomplish the employer's stated intent of forbidding alcohol impairment at work.

For the reasons stated by the ALJ and for those stated above, the commission affirms the appeal tribunal decision.

cc:
Attorney Lucas J. Thomas
Attorney James Kenny



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