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

JOSEPH H PORRAS, Employee

ECHO LAKE FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11611364MW


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 for a year as a maintenance mechanic for the employer, a food manufacturer. He was discharged on October 21, 2011 (week 43).

The employer has a written drug and alcohol policy which forbids working under the influence of alcohol. It permits testing when there is reasonable suspicion. Refusal to comply with an order for testing is considered a violation of the policy. The policy also provides that an employee is required to sign a consent form authorizing the clinic to perform the test and release the result to the employer. The policy does not list what types of drug or alcohol testing might be ordered.

On the employee's last day of work, he was observed smelling of alcohol. The employee was ordered to take a drug and alcohol test and presented with a consent form. The form required the employee to consent to breathalyzer, urinalysis and blood testing. The employee objected to the portion of the form which authorized blood testing but agreed to the others. He asked to alter the consent form to exclude the blood testing. The employer's witness told him that he could either sign the form as is or the employer would consider it a refusal and he would be discharged. The employee would not sign and he was discharged. The employee denies being intoxicated at work.

The first issue to be decided is whether the employee quit or was discharged.

The commission has previously held that the refusal to submit to drug testing pursuant to a reasonable employer rule may be considered a quitting. See, Moon v. Qualitemps, Inc., UI Hearing No. 03008103MD (LIRC June 4, 2004); Girard v. Rite Hite Manufacturing Corporation, UI Hearing No. 01605663 (LIRC March 12, 2002); Thomas v. Busse SJI Division, UI Hearing No. 01400081AP (LIRC Sept. 27, 2001); Parks v. Specialty Care Services LLC, UI Hearing No. 03605702MW (LIRC Jan. 8, 2004). However, in this case, the employee did not refuse to submit to drug testing. He explicitly agreed to urinalysis and a breathalyzer test. The employer elected to discharge the employee following his objections to blood testing.

The remaining issue is whether the employee's discharge was for misconduct connected with his employment.

Blood testing is a more invasive method than breath and urine. The employer's drug policy did not put the employee on notice that the employer might subject him to a blood test. There is no dispute that the employee agreed to submit to any testing other than blood. The employer elected to discharge the employee rather than modify its consent form. However, the employer's requirement that the employee consent to a blood test was not reasonable in this context. His refusal did not show a deliberate or substantial disregard of the employer's interests or of the standards of conduct that it had a right to expect. Therefore, his discharge was not for misconduct connected with his employment.

The commission therefore finds that the employee was discharged in week 43 of 2011, but not for misconduct connected with his employment 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 43 of 2011, if he is otherwise qualified.

Dated and Mailed March 30, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ. It accepts the factual findings of the ALJ but reaches a different legal conclusion when applying the law to those facts.


porrajo . urr : 178 : 2


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uploaded 2012/09/07