LARRY R DOWE, Employee
D & H INDUSTRIES 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 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 sixth and seventh paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW section (the two paragraphs immediately following citation to the Boynton Cab Co. case) are deleted and the following substituted:
Because the employer's policies failed to provide reasonable notice to the employee that off-duty drug use, as measured by a positive drug test, could result in his discharge, and because the employer has failed to prove that the employee was actually impaired on his last day of work, 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 19 of 2006, if otherwise qualified.
Dated and mailed November 17, 2006
dowelar . umd : 115 : 1 MC 653.1 MC 651.4
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The employee sustained a work-related injury on May 1, 2006. Consistent with the employer's policies, he was administered a drug screen as a result. This drug screen indicated the presence of cannabinoid metabolites. The employee admits that he smoked marijuana two days before the test.
The employee was discharged as a result.
The employer's policies (exhibit #1) state as follows, as relevant here:
714 Drug Testing
D & H is committed to providing a safe, efficient, and productive work environment for all employees. Using or being under the influence of drugs or alcohol on the job may pose serious safety and health risks. To help ensure a safe and healthful working environment, job applicants and employees may be asked to provide body substance samples (such as urine and/or blood) to determine the illicit or illegal use of drugs and alcohol. Injuries, accidents or incidents at work requiring professional medical attention may trigger a drug testing requirement....
702 Drug and Alcohol Use
It is D & H's desire to provide a drug-free, healthful, and safe workplace. To promote this goal, employees are required to report to work in appropriate mental and physical condition to perform their jobs in a satisfactory manner.
While on D & H premises and while conducting business-related activities off D & H premises, no employee may use, possess, distribute, sell, or be under the influence of alcohol or illegal drugs. ...
Violations of this policy may lead to disciplinary action, up to and including immediate termination of employment,...
The employer contends that the employee violated the employer's policies prohibiting being "under the influence of" illegal drugs, and requiring workers to report to work in "appropriate mental and physical condition," by producing a positive drug test and by exhibiting signs of actual impairment.
In Koss v. Menomonee 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.
As relevant here, the employer's policies require that "no employee may use, possess, distribute, sell, or be under the influence of alcohol or illegal drugs" while on employer premises or conducting employer business, "employees are required to report to work in appropriate mental and physical condition to perform their jobs in a satisfactory manner," and "employees may be asked to provide body substance samples (such as urine and/or blood) to determine the illicit or illegal use of drugs and alcohol."
The language of the employer's policies is essentially equivalent to that at issue in Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003); Maestre v. Allen Edmonds Shoe Corp., UI Hearing No. 03609368MW (LIRC June 4, 2004); and Coleman v. U Line Corp., UI Hearing No. 03602548MW (LIRC Oct. 7, 2003), which prohibited reporting to work under the influence of illegal drugs without specifying that an employee would be considered to be "under the influence" as the result of a positive drug test. (1) In those cases, the commission held that the employer's policies did not place the employee on notice that off-duty drug use, as measured by a positive drug test, could result in his discharge, and did not, as a result, satisfy the standard articulated in Koss, supra. The same analysis is appropriate here.
The employer also failed to prove that the employee was actually impaired on his last day of work.
The employer appears to be arguing in this regard that the employee, by testifying that it was his understanding that marijuana could be detected in one's system for days but that it doesn't impact one's ability to function for longer than a day, somehow is admitting that he was impaired on May 1. However, since the evidence establishes that the employee smoked marijuana two days before May 1, this testimony does not support the employer's argument.
In addition, the evidence of record does not show that the employee was actually impaired on May 1. The employee denies that he was impaired, there is no testimony that he was observed to be impaired, and the employee's injury could have been attributable to a machine which was not operating optimally.
The employer has failed to sustain its burden to prove misconduct.
cc: Attorney Daryll J. Neuser
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