CHASE D TOUSEY, Employee

COIN WRAP 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:

Delete the sixth paragraph after "FINDINGS OF FACT and CONCLUSIONS OF LAW" and substitute therefor:

The employer's rule provides only that a worker will be disciplined and that the discipline "may include termination from employment." The employer's policy does not make it clear to workers that they will be discharged from their employment for a positive drug or alcohol test.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2007, if otherwise qualified.

Dated and mailed March 19, 2008
tousech . umd : 145 : 1   MC 651.2  MC 651.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer argues that the employee tested positive for marijuana metabolites and as such, his actions amounted to misconduct connected with his work. The employer argues that during the investigation he told the deputy that he was aware that company rules provided that a positive drug test result is grounds for immediate discharge. The employer's policy provides for some form of discipline, and does not provide that a worker who tests positive for drug use will only be discharged. As such, the employee was not specifically put on notice that he would be discharged for a positive drug test. The employee at hearing testified that he was aware that he could be randomly tested for drug use but did not testify that he was aware he would be discharged. The conversation of the adjudicator and the employee was not part of the record and the commission cannot base findings on information that is in the file but is not part of the record.

The employer further states that the employer's drug testing policy prohibits positive test results and in fact, prohibits a worker from illegal drug use on or off duty. The commission agrees and has modified the ALJ's decision to reflect the employer's position in that regard.

cc: Jeffrey L. Miller

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uploaded 2008/03/24