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

WILLIAM R DILLON, Employee

WE ENERGIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604257MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 18 of 2008 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed December 12, 2008
dillowi . usd : 145 : 1  MC 651.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned the adverse appeal tribunal decision. The employee argues that his supervisor did not believe that he needed a drug test because he was not driving for the employer. The employee was tested, pursuant to the employer's policy because he had been injured. Whether his supervisor thought the test was necessary or not is not determinative in this case.

The employee argues that he was not tested according to employer procedure. The employer submitted the UI drug test report paperwork that was properly filled out and certified, including the chain of custody information.

The employee further argues that the employer's policy suggests a zero-tolerance for drugs, yet does not have a zero tolerance policy for alcohol consumption and allows on-site alcohol consumption at certain company authorized events. It is fairly common for an employer to have a zero tolerance policy for illegal drugs, and to limit alcohol use because alcohol is a legal substance and impairment has been defined in the law for the purpose of driving, for example. On the other hand, with certain illegal drugs, it is not possible to test for impairment, and it is only possible to test for metabolites. Further, the metabolites must exceed certain levels before it is considered a positive test result, so this would not necessarily be a zero tolerance for illegal drugs.

Allowing workers to drink on the employer's premises during a social event, when they are not going to be working, is a reasonable distinction, which does not mean that the employer lacks commitment to having workers be unimpaired at work or that the policy is not being applied uniformly to all workers.

The employee argues that he consistently denied using marijuana prior to being tested, and offered speculative theories to explain the positive results. In this case, the employee tested positive for marijuana metabolites, indicating he ingested marijuana. The employee offered a theory as to why he might test positive even prior to testing positive, which suggests that he knew his test would be positive. The employee has offered no reasonable theory to explain why his test was positive if he did not in fact ingest marijuana. Therefore the commission concludes that the test was positive because the employee used marijuana.

The employee argues that marijuana metabolites may remain in a worker's system for a significant amount of time, and thus, the presence of metabolites may not necessarily mean that the worker is impaired. While that may be true, the employer has no reliable way to demonstrate impairment, so it has little choice but to use a test that can only determine whether a worker has used drugs in the recent past. In this case, the employer had a drug policy that the employee was or should have been aware of. The policy was for the purpose of creating a safe working environment. The employee's failure to adhere to the employer's policy amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

 

cc:
Attorney Lynne English
Attorney Brenda Lewison



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