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

ERICA A HEMBREE, Employee

SYMPHONY DIAGNOSTIC SERVICE I INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09602110MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked almost three years as an x-ray technician for the employer, a portable x-ray business. She was discharged on February 3, 2009 (week 6).

The issue is whether the actions for which she was discharged constitute misconduct connected with her employment.

On January 21, 2009, the employee was involved in an accident while driving an employer vehicle. The employer's policies require post-accident drug testing. Because it was too late on January 21 for the employee to undergo a drug test at the employer's drug testing facility, the employer arranged for her to take the test the next morning.

The employee underwent the test on January 22, 2009, and the testing facility subsequently reported to the employer that the employee had tested positive for barbiturates. The employee was discharged as a result.

The employer's policies state as follows, as relevant here:

DRUG-FREE WORKPLACE

...In accordance with the Program, the following conduct is prohibited: Being under the influence of a controlled substance, illegally using drugs or alcohol during work hours or while engaged in company business-related activities or on company property:

Illegal use, possession, distribution, dispensation, sale or storage of a controlled substance, illegally using drug or drug paraphernalia;....

For those employees in safety-sensitive positions (including but not limited to technologist), failure to notify a supervisor manager of the use of a prescription or over-the-counter drug which may alter the employee's physical or mental ability to perform his/her safety-sensitive functions may result in disciplinary action up to and including termination. Further, employees must follow all physician, manufacturer or package insert directions when taking an over-the-counter prescription drug;...

Employees who cause or contribute to an accident may be subject to testing following the accident....

DISCIPLINARY ACTION

...The following offenses are those for which immediate discharge may result....

Violation of the Drug-Free Workplace Program, including possession, distribution, sale, transfer, use or being under the influence of alcohol or illegal drugs, or abuse of legal drugs while on company property or during work time; the refusal to take, or failure to pass, a drug or alcohol test when requested by the company;...

Policy: Company Vehicle and Driving Policy

...9. All employees who are involved in an accident while operating a company vehicle must submit to post-accident drug testing immediately.

...14. Grounds for immediate termination include but are not limited to:

Driving under the influence of drugs (including prescription drugs that may impair the ability to drive) or alcohol....

The employee contacted her physician after she was provided notice of her termination. The employee presented exhibit #5 as the letter her physician authored at the employee's request. This letter states as follows:

Ms. Hembree Erica is patient of mine. She took her mother medicine on January 23rd 2009 (Fioricet). Her mother suffers from migraine headaches and she is getting prescriptions from our office. Per Ms. Hembree statement she developed severe headache on above [illegible] date and her mother gave her one tablet.

This letter is not certified or otherwise authenticated, and the physician did not testify at the hearing.

The drug testing forms (exhibit #4) provided by the employer would be insufficient to establish that the employee's January 22 drug test was positive for barbiturates. The drug test result form is not certified, and the specimen chain of custody form is illegible.

However, the employee admits in her testimony that, on January 16, 2009, she took one of the Fioricet tablets which had been prescribed for her mother. It appears to be undisputed that one of the components of Fioricet is a barbiturate (butalbital).

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).

It should first be noted that the record does not establish that the barbiturate butalbital is a controlled substance or "illegal drug" in Wisconsin, only that the employee illegally used butalbital when she took one of the tablets prescribed for her mother. The record consequently does not show that the employer's policy prohibiting the use of illegal drugs, and the implication in this policy that testing would be for the purpose of determining the presence of such illegal drugs in a worker's system, would even apply to the employee's use of her mother's prescription.

Moreover, even if the Koss elements are applicable, although the employer's drug policy does meet the first three, and does provide that failure to pass a drug test is one of the actions which "may" lead to immediate termination, it does not define what constitutes a failure to pass a drug test, i.e., it does not state that a positive drug test constitutes a failure to pass.

Moreover, although the employer's policy prohibits illegally using a drug, failing to notify management of the use of certain prescription and over-the-counter drugs, and failing to follow physician directions when taking a prescription drug, actions engaged in by the employee here, these are not actions specified by the employer as resulting in immediate discharge. As a result, the employer's policy would not have provided sufficient notice to the employee that these actions placed her job in immediate jeopardy.

In addition, the employer's Company Vehicle and Driving Policy does not define "under the influence," and the record does not establish that taking the prescription drug Fioricet would impair the employee's ability to drive. As a result, the record does not establish that the employee violated this policy.

The commission therefore finds that in week 6 of 2009, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but was discharged and her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2009, if otherwise qualified.

Dated and mailed August 12, 2009
hembrer . urr : 115 : 5   MC 651.4  MC 651.7

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

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uploaded 2009/09/01