AKYAA D SMITH, Employee

LAIDLAW TRANSIT SERVICES 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:

1. The final three sentences in the second paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted.

2. The fourth paragraph of the FINDINGS OF FACT and CONCLUSION OF LAW section is deleted, and the following substituted:

Although the employee had reason to be aware through the language of the employer's drug policy that off-duty use of an illegal drug could subject her to discharge, the employer failed to sustain it burden to prove that the employee had illegal drugs in her system on April 26, 2007, the date of the random drug screen.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2007.

Dated and mailed October 12, 2007
smithak . umd : 115 : 1  MC 651.2  MC 651.4  MC 652.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The employer's drug policy (exhibit no. 1) states as follows, as relevant here:

..As an employee, you will be expected to support the Company's efforts to promote a drug and alcohol-free workplace by not possessing, distributing, transferring, purchasing, selling, using, or being under the influence of, or having alcoholic beverages or illegal drugs in your system while on Company property, while attending business-related activities, or while on duty....

Please be aware that any violation of this policy may result in termination of employment....

This policy also provided for random drug screens for safety-sensitive workers. The employee does not dispute that she was a safety-sensitive worker.

In Koss v. Menonomee 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. See, Coleman v. U Line Corp., UI Hearing No. 03602548MW (LIRC Oct. 7, 2003).

The fact that the employer's policy, by its terms, is violated by the presence of illegal drugs in a worker's system while on duty, satisfies the requirement that the policy prohibit off-duty use of illegal drugs. See, Stushek v. Graphic Packaging Corp., UI Hearing No. 02402158AP (LIRC April 10, 2003) (policy providing that staff reporting for work under the influence of drugs would be subject to severe disciplinary action which may include termination, and that "under the influence" includes the presence of alcohol or drugs in the body, which may be verified by laboratory tests, satisfies requirement that policy prohibit off-duty use of illegal drugs).

However, even if the employer's policy here meets the Koss requirements, including the requirement that it bear a reasonable relationship to the employer's interests, the documents offered by the employer to prove that the employee tested positive for marijuana are insufficient to sustain its burden of proof.

The employer offered, and the hearing record includes, the two pages of the department's UI Drug Reports, an uncertified copy of the testing laboratory's medical review officer report, and an unsigned form relating to a performance audit of the collecting clinic.

The primary deficiency here is that the department's test analysis form (exhibit no. 2, page 1) was not completed by the North Carolina testing laboratory but instead by a medical assistant at the Milwaukee clinic where the employee's urine sample was collected. There really is no excuse for this since the department letter accompanying the forms instructed the employer to submit the "Obtaining and Sealing the Specimen" form to the clinic "that took the specimen," and the "Performing the Test Analysis" form to the laboratory "that conducted the test." (emphasis in original) In the absence of expert testimony, the documentary evidence of record as to the testing laboratory's chain of custody and testing practices, and its testing results, consisting solely of an uncertified medical review officer report, is insufficient to establish that the sample collected by the clinic in Milwaukee was properly received and analyzed by the laboratory, and that this analysis revealed the presence of marijuana. In the absence of such proof, the employer has failed to show that the employee engaged in misconduct by violating its drug policy.

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uploaded 2007/10/22