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

DEBRA A PARENT, Employee

PULASKI COMMUNITY SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402493GB


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 ineligible for benefits beginning in week 32 of 2005 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed January 31, 2006
parende . usd : 132 : 1   MC 653.2  MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found she was discharged for misconduct connected with her work. The employee asserts that the ALJ set a new evidentiary standard for claimants suffering from alcoholism and that such an evidentiary requirement constitutes a catch 22. The employee argues that based on the commission's decision in Trew v. Patrick Cudahy, Inc. UI Dec. Hearing No. 93606393MW (LIRC June 15, 1994) and Rowe v. Walker Stainless Equipment Co. Inc., UI Dec. Hearing No. 03001017BO (LIRC Dec. 19, 2003), the employee's consumption of alcohol did not constitute willful a willful or intentional act. The commission disagrees. Neither case stands for the proposition that a medical opinion stating that the employee could not abstain from the consumption of alcohol prevents a finding of misconduct no matter the circumstances of the case. This case does not involve, for example, a discharge caused, in part, by an absence due to an inability to refrain from the consumption of alcohol the prior evening.

In addition, the commission stated in Rowe:

The employee's conduct in consuming the quantities of alcohol he did when he knew he was scheduled to return to work within only a few hours, and his conduct in then actually coming to work and attempting to work in that condition, was clearly intentional. Although he also testified that he thought he "probably" did not have control over his drinking on the day in question, the question of whether an employee is actually unable to abstain from consuming alcohol is one that must be answered by expert medical evidence. See, Trew v. Patrick Cudahy (LIRC, June 15, 1994). The employee did not establish by any competent evidence that he was unable to abstain from the consumption of alcohol. Furthermore, the employee's conduct in coming into work notwithstanding his condition, knowing (as he must have) how much alcohol he had consumed, was also clearly intentional conduct.

The employer established that the employee appeared for work under the influence of alcohol. While the employee presented a medical opinion that she could not abstain from the consumption of alcohol, the employee's actions in reporting for work notwithstanding her condition, having consumed 750 ml of vodka the night before, was intentional conduct.

The commission does not agree with the employee that the ALJ's decision is not supported by testimony offered at the hearing or reasonable inferences that can be drawn from that testimony.

The employee argues that the employer's policy fails to define "intoxicated" or "under the influence" and fails to prescribe an impermissible blood alcohol content level. However, the employee admitted she was under the influence of alcohol at work.

Further, the commission finds that a BAC of .15 fits within any reasonable definition of "intoxicated" or "under the influence." In addition, in none of the hundreds of cases the commission has reviewed, where an impermissible blood alcohol content level has been set forth in a policy, has it ever permitted a BAC above .10.

Finally, the employee argues that the employer did not follow its policy and allow the employee to take a reimbursable absence in lieu of suspension, and undergo treatment. However, the employer's policy clearly provides for discharge for being under the influence of alcohol at work. As the employer notes, the employee did not acknowledge on April 29, 2005, that she was under the influence.

cc:
Attorney Melissa M. Thiel Collar
Attorney Robert W. Burns



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