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


JOYCE G HAWTHORNE, Employe

ELDER CARE LINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604815MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 7 years as a van driver for the employer, a transportation company. Her last day of work was June 22, 1998 (week 26), when she was discharged.

The employer has a "drug-free workplace" policy. That policy provides:

"Elder Care Line prohibits alcohol and drug abuse in the workplace. Employes must not report to work under the influence of alcohol and/or drugs, nor manufacture, distribute, dispense, possess or use controlled substances on agency premises. Violation of this prohibition will result in disciplinary action up to and including termination. An employe must notify Elder Care Line within five days of any criminal statute conviction which occurred in the workplace. Elder Care Line will take appropriate disciplinary action against such an employe or require the employe to participate in a drug abuse assistance or rehabilitation program."

The employer's substance abuse policy and procedures (Exhibit 2), provide for pre-employment, reasonable suspicion, random, and post-accident drug testing. The policy contains a specific paragraph on the consequences of a positive drug test and provides:

"What are the consequences of a verified positive drug test?

Drivers and staff mechanics whose drug tests are verified as containing traces of prohibited drugs will be notified by the Medical Review Officer, as will the company or co-op management. The individual must be immediately removed from any safety sensitive position and given a list of resources available to evaluate and resolve problems associated with prohibited drug use. Your employer will assure that individuals testing positive or refusing to test will be evaluated by the program's Substance Abuse Professional who will determine what assistance may be needed to resolve problems associated with prohibited drug use. The current Transit Plus Substance Abuse Professional contractor is Symmetry; individuals testing positive must first call Substance Abuse Management, Inc. (274- 1593) for an assessment referral. Individuals testing positive are subject to follow-up testing for as long as five years as prescribed by the SAP. A positive drug test may also include the intervention of your company's or co-op's Employee Assistance Program, if available and permitted by your company or co-op. Your company's or co-op's sanctions regarding positive drug test results which are outside of the scope and authority of the FTA regulations are attached and are a part of this policy."

The only attached company policy, as apparently referred to above, are for positive tests from a random drug screen. That policy provides for a 15-day suspension without pay. Employes are informed that they are subject to termination if they do not complete substance abuse assessment and treatment plan and test negative for drugs. The employer testified that follow-up testing is for someone who tested positive on a random test, and that follow-up testing and treatment is not offered to someone who has a post-accident positive. The employer did not know why there was a difference in treatment for post-accident and random testing.

The employe acknowledged using drugs but contended she last used drugs two weeks prior to the testing. The employe also contended that the drugs had nothing to do with the accident, although she acknowledged she was at fault because she was looking at an object in front of her instead of to her right. The employe was discharged for testing positive on a post-accident drug test.

The issue to be decided is whether the employe was discharged for misconduct connected with her employment.

Generally, the commission follows the department's policy which requires that off-duty regulation of any employe's conduct be contained in a written policy. The department's policy provides that in order to deny benefits for off-duty drug use based on a positive test the employe must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs. To be reasonable the rule must meet the following criteria:

(1) The rule prohibits both on duty and off duty use of illegal drugs, is known to the employe, is provided in writing, and spells out the consequences of a positive test result; or

(2) The rule implements drug testing which is mandated by either state or federal law and the employe is provided written copies of both the legal mandates and the consequences of a positive test result.

Wisconsin Unemployment Compensation Manual, Vol. 3, Part VII, Ch. 2, pp. 14-14A.

The employer's written policy does not provide for discharge upon positive test results. The general policy does not prohibit off-duty use and the policy itself does not provide for discharge for a positive test. Rather, the policy discusses an assessment and treatment plan. The department's policy provides that in order to deny benefits for off-duty drug use based on a positive test the employe must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs. The employer's policy does not meet the aforementioned criteria.

Further, the employer did not establish that the employe was "under the influence" of drugs while at work. Indeed, one reason for finding misconduct based on a positive drug test is because of the difficulty in proving that an employe's work performance is impaired by alcohol or drugs. The fact that the employe had an accident and testified positive does not establish that the accident was due to or related to her drug use.

The commission therefore finds that in week 26 of 1998, the employe was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 26 of 1998, if she is otherwise qualified.

Dated and mailed: October 15, 1998
hawthjo.urr : 132 : 6  MC 651.2  MC 653.1

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission does not disagree with any credibility assessment made by the ALJ and therefore did not consult with the ALJ regarding witness credibility or demeanor. The ALJ found that the employer's policy provides for post-accident testing and notifies employes that they could be discharged for positive drug screening. The commission finds that the employer's written policy submitted at the hearing does not provide for discharge following a positive post-accident drug test. While the employer testified that the employer treats post-accident testing different than random testing, that difference as it relates to the consequences of a positive drug test are not reflected in the written policy submitted at the hearing. Finally, the commission disagrees with the ALJ that there is sufficient evidence in the record to establish that the employe was "under in influence" at work.


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