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

ROBIN J BLYTHE, Employee

CITY OF OSHKOSH, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402971OS


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:

In the first and second sentences of the final paragraph on page 6 of the decision, the paragraph that continues onto page 7 of the decision, and in the penultimate sentence of the first full paragraph on page 7 of the decision, delete the word "negative" and substitute therefor "positive."

DECISION

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

Dated and mailed May 3, 2006
blythro . usd : 145 : 2  MC 651.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employee was required to maintain a commercial driver's license and to comply with Federal Regulations implemented by the Department of Transportation as well as the employer's policies. The employer argued that the policy, which it expected the employee to comply with, prohibited workers from reporting for duty or remaining on duty if the worker tested positive for controlled substances. The employer further notes that the employee tested positive for cocaine, although she consistently maintained she did not use cocaine. The employer further points out that it thoroughly investigated any reason that the employee gave for her alleged false positive. However, the employer believed that the evidence demonstrated that the employee used cocaine. Because the employer determined that any employee assistance program, or any drug treatment program would not be successful in view of the employee's denial that she used cocaine, the employer decided to discharge the employee.

The commission agrees that the employee tested positive for cocaine. While the employee told the employer that this was a false positive, she did not appear at the hearing to either argue that this was a false positive or to provide any evidence to explain why the test could have been inaccurate. On the contrary the test procedure seems to have been done in a professional and accurate manner. The employer's policy provides that when a positive test occurs, the employer is required to remove the worker from the safety-sensitive position. It further requires the employee to have the opportunity to do what the employee did in this case, specifically, contest the positive result. However, the employer is then required to refer the employee to the employer's EAP for assessment and compliance with rehabilitation after a determination of a problem has been made. The employer failed to take this step, rather, it simply concluded that since the employee failed to admit to using cocaine, there was no point in taking this step.

It was the employer's position at the hearing that it had the discretion to discharge the employee rather than send her to the employee assistance program. The director of administrative services testified that the employee was not offered a last chance agreement because that was offered only under special circumstances and that the employer was not required to offer such an option. The employer states it offers this option if it believes the worker is truthful and interested in working on a problem. The director testified that its practice, as to when it offered a last chance agreement rather than discharge, was not governed by the policy.

However, the employer's position seems to directly contradict the employer's policy, which does not appear to allow this sort of discretion. The commission's interpretation of the policy is buttressed by the testimony of the director of administrative services that, since he has held his position, there have been about three workers, including the employee, who have had positive drug tests. The other two workers were not discharged but were given last chance agreements. The commission cannot conclude, when reading the employer's drug policy in its entirety, that the employee was aware that she would be discharged for a first positive test. Furthermore, if the employee was aware of how co-workers who tested positive were treated, she would not have any indication that she could be discharged for the positive test, in particular as it was evidently her position that she did not use drugs in the first place. Under the circumstances, the employer has failed to establish that the employee's discharge was for misconduct connected with her work.

cc:
Attorney Peter J. Culp
Attorney Tony J. Renning



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uploaded 2006/05/05