BRADLEY P BRANDT, Employee
SCOT FORGE CO, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter on January 15, 2010, concluding that the employee was discharged but not for misconduct, within the meaning of Wis. Stat. § 108.04(5). A timely petition for review was filed.
On July 30, 2010, the commission issued a decision which affirmed the decision of the ALJ that the employee's discharge was not for misconduct. The employer commenced a proceeding for judicial review of the commission's decision.
On March 15, 2011, the circuit court for Rock County issued a decision reversing the commission and finding that the employee was discharged for misconduct. The commission appealed to the court of appeals.
On February 23, 2012, the court of appeals issued a decision(1) reversing the circuit court and remanding the case back to the circuit court with directions to vacate the commission's decision and remand the matter to the commission for further factual findings and articulation of the basis for its conclusion that the employee was not discharged for misconduct.
The court of appeals permitted the commission to determine whether to have further hearing before re-deciding the matter. On May 22, 2012, the commission remanded the matter to the department for further hearing before an administrative law judge, acting on behalf of the commission, with respect to the issues described in the court of appeals' decision.
Further hearings were held before an ALJ for the Division of Unemployment Insurance on October 9, 2012, and January 28-29, 2013. The matter is now before the commission for its decision, as mandated by the court of appeals.
Based on its review of the evidence presented at the original hearing and the remand hearings, and having considered the positions of the parties and the decision of the court of appeals, the commission now makes the following:
The employment separation
The employee worked for about three years as a saw operator for a steel forging shop. His last day of work and date of discharge was October 9, 2009 (week 41).
The employer is a federal contractor and required to have a drug-free workplace policy. Until January of 2009, the employer's drug policy provided for urine testing pre-employment, where there was reasonable suspicion, and following an accident. Effective January 29, 2009, the employer added random drug testing to its policy and changed its method of testing from urine to hair. The drug policy was in writing and provided for discharge in the event of a positive test. When it announced the policy, the employer notified its employees that if they disclosed prior drug use, they would receive a 120-day grace period before they were tested for the first time and then they would be tested quarterly for two years.
The employee disclosed that he believed that he would test positive and was granted the grace period after which he would be subject to two years of regular quarterly testing under the employer's second chance policy.
The employee attributed his cocaine use prior to his January 2009 disclosure to the fact that he had recently divorced, his father had died and he had begun a relationship with a woman who used cocaine. He denied any use of cocaine after his disclosure to the employer, but he did admit that he continued his sexual relationship with the woman through the fall of 2009.
On June 18, 2009, the employee was directed to submit a chest hair sample for testing pursuant to the employer's drug policy. It is not clear from the record why head hair was not taken for this test. The chest hair sample was tested by a Psychemedics Corporation laboratory and the test results were positive for cocaine. The test levels were 16.9 ng/10 ml for cocaine, with the cocaine metabolites Benzoylecgonine (BE) at 2.4 ng/10 ml and Cocaethylene (CE) at 2.1 ng/10 ml. Chest hair grows at a different rate than head hair, with a life cycle of approximately six to seven months. When the employee was informed of the positive result, he denied that he had used cocaine since January and argued that the chest hair sample was showing use prior to his disclosure. On June 29, the employer agreed to let the employee submit a urine sample and a head hair sample for additional testing. Both were negative. The employer permitted the employee to return to work under a new two-year second chance agreement which included the same quarterly testing regimen.
On September 3, 2009, the employee had surgery to remove a cyst from his tailbone. He returned from medical leave on September 22, 2009, and submitted head hair for a drug test. The sample tested positive with levels of 7.3 ng/10 ml for cocaine, and 7.3 ng/10 ml for BE. The employer's Medical Review Officer (MRO) contacted the employee about any recent surgeries or medical treatments which might have accounted for the results. The employee explained about his surgery and provided his medical records. Neither the employee's physician nor the MRO found anything in the medical records which would produce a positive result for cocaine. The medical records showed that the employee used opioids for pain relief after surgery, but the hair sample was not positive for opioids.
The positive test result was reported to the employer on Friday, October 9, 2009, and the employer discharged the employee the same day for testing positive on a drug test in violation of its policy. When he was discharged, the employee denied that he used cocaine and mentioned his sexual relationship with a woman who used cocaine as a possible reason for the result. His supervisor told him to get his own hair test to clear his name. On Monday, October 12, the employee went to a local clinic and provided another head hair sample which was tested by Omega Lab at the employee's expense. Omega reported that the sample was negative for drugs of abuse, including both cocaine and opiates. Because the sample was reported to be negative, no levels were given. The employee brought the results of this hair test to the employer. After consulting with Psychemedics, the employer notified the employee that it would not reinstate him.
The issue to be decided is whether the employee was discharged for misconduct connected with his employment.
The employer bears the burden of establishing disqualifying misconduct. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:
. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.
The employee was discharged solely due to the positive result from the September 22, 2009, hair test. The employee has never admitted using any cocaine after January 2009 and the only urine test he took tested negative. The employer conceded that there may have been problems with the chest hair sample taken in June and permitted the employee to retest with head hair which was negative. Therefore, the issue before the commission is whether the positive hair test result on September 22 is sufficient evidence to meet the employer's burden of establishing that the employee violated the employer's reasonable drug policy.
Drug-Related Misconduct Cases
The commission has not previously found misconduct solely on the basis of a positive hair test. In rejecting a hair test in one case, the commission found that there are no federally accepted standards for hair testing methodology and that the procedures used to test the employee's hair sample had not been approved by the Food and Drug Administration (FDA). It further found that there were no agreed-upon cutoffs for any drug or its metabolites in hair. Tabaska v. John Deere Shared Services, Inc., UI Dec. Hearing No. 06600803MW (LIRC Jan. 26, 2007). On another occasion, the Department of Workforce Development petitioned an appeal tribunal decision which found misconduct based upon a positive hair test. The commission modified the appeal tribunal decision to find misconduct based on the employee's admission of drug use contrary to the employer's policy and not on the basis of the hair drug test. Graveen v. Lac du Flambeau Band of Lake Superior Chippewa Indians Inc., UI Dec. Hearing No. 08202198RH (LIRC Jan. 30, 2009). In that case, the commission confirmed that neither the department nor the commission accepted positive test results from anything but urinalysis as the sole basis for a finding of misconduct.(2) Since Graveen admitted the conduct, that admission was a sufficient basis for a conclusion that she violated the drug policy.
The department has historically limited acceptable positive drug test results to urinalysis. The basis for this is a policy initially formulated in 1995 and revised on two occasions and incorporated into its Disputed Claims Manual. That manual sets out guidelines for department adjudicators to use in investigating and resolving eligibility issues. In creating its drug test policy, the department relied on the U.S. Department of Health and Human Services (DHHS) and its sub-agency Federal Substance Abuse and Mental Health Services Administration's (SAMHSA) guidelines on drug testing because the department does not have the expertise to engage in independent scientific evaluation. In 2000 and 2002, the department researched hair testing because employers in the state were using it but determined that there were too many unanswered questions with the validity of the tests. It relied particularly on the fact that DHHS had no guidance on hair testing. The department's witness indicated that if SAMHSA provided mandatory guidelines for hair testing, the department would have no objection to accepting a hair test result. This is consistent with other provisions of Wisconsin law. The Wisconsin legislature has endorsed relying on SAMHSA for drug testing guidelines. Wisconsin Stat. �103.503(4)(c), which applies to substance abuse prevention programs in Wisconsin public works projects, also refers to SAMHSA's drug testing guidelines. Wisconsin administrative code provisions relating to drug testing of public safety officers and state license holders have similar language.(3)
Because the department's adjudicators are not scientifically trained and are under severe federally imposed time constraints for completing cases, they must be able to quickly determine whether a drug test result is reliable. They currently access two databases of labs certified to perform urine testing: one of approved labs in the federal register maintained by SAMHSA, and since 2009, another of forensic labs certified by the College of American Pathologists (CAP). The policy requires that all labs, including CAP-certified labs, must follow the SAMHSA mandatory guidelines for specimen collection, labeling, and protection from contamination; maintenance of the chain of custody; confirmation of a positive test by an approved confirmation test such as gas chromatography/mass spectrometry (GC/MS) and maintenance of the confidentiality of test results. Since SAMHSA does not presently have any hair testing guidelines and has not approved any hair testing labs, this certified lab requirement effectively limits approved drug tests to those that test urine. The department issues approximately 7,200 determinations each year dealing with drug testing misconduct.
The commission has followed this same policy in various contested drug-related misconduct cases over the years. When this case was initially decided by the commission in July of 2010, no evidence had been presented to the commission that suggested that this approach to drug-related misconduct cases should be abandoned.
Analysis of Hair Testing for Drug Use
As directed by the court of appeals, the commission ordered additional hearing to determine whether a positive hair test is now a sufficiently reliable basis upon which to make a finding of misconduct. It directed the parties and the department to provide expert testimony regarding the science of testing hair for drugs of abuse. The parties and the department all provided witnesses with significant expertise in the drug testing field.
When Psychemedics tests head hair, a collector removes a sample from the donor the approximate width of a pencil. From this sample, portions are removed for the initial screening test. If presumptively positive, then another portion is subjected to a decontamination or a washing protocol and a more sensitive confirmatory test is performed. Formerly, Psychemedics performed a gas chromatography/mass spectrometry (GC/MS) confirmatory test; currently, it uses liquid chromatography-tandem mass spectrometry (LC-MS/MS.) The remaining sample is preserved for retesting if necessary. Psychemedics reports samples that test below a cutoff level of 5 ng/10 mg for cocaine to be negative for cocaine.
Psychemedics tests the 1.5 inches closest to the scalp, which it estimates will record the previous 90 days of drug ingestion. The remaining strand is discarded. Human hair grows at varying rates due to genetic and external variables, with an average growth rate of 1.06 cm per 28-day month. Individual growth rates can vary from .8 and 1.3 cm. per month. Psychemedics relies on an average growth rate of 0.5 inches per month (1.27 cm) for its hair tests and uses a 30-day month to arrive at its 90-day testing window.
With a urine drug test, a sample is positive if it contains the cocaine metabolite BE, or Benzoylecgonine. This is only present in urine if cocaine has been metabolized by the body after ingestion. No actual cocaine is present in a urine sample.
However, hair is different. There is no currently identified metabolite contained in a positive hair sample that is not also present in the environment. There is no certain metabolic marker that is exclusive to ingestion by a user of cocaine. Actual cocaine is present in a positive hair sample. BE is also present. However, BE is a naturally occurring product of cocaine decomposition and is present in the environment when cocaine is also present. Cocaethylene (CE) can occur as a metabolite in a drug test of hair or urine when an individual ingests cocaine and alcohol at the same time. However, street cocaine also contains CE in varying proportions depending on how it is shipped (often in alcohol). Less commonly, cocaine users can show other metabolites which are not exclusive to metabolism, including Norcocaine.
The employer argues that its hair test conclusively shows that the employee ingested cocaine after he agreed in January 2009 to abstain from the use of illegal drugs. It further argues that its test results can, with reasonable precision, measure the quantities of cocaine ingested by the employee in each of the 30-day periods within the 90-day period immediately prior to his September 2009 hair test. In support of this contention, the employer presented extensive testimony from Dr. Thomas Cairns, a long-term employee of the Psychemedics Drug Testing lab and its primary scientific expert. Dr. Cairns has a Ph.D. in analytical chemistry and has conducted research on hair testing and published numerous journal articles reporting his findings. Dr. Cairns testified that human hair has inaccessible regions which trap drug and drug metabolites which are circulating in an individual's blood stream after ingestion. He analogizes human hair to a "tape recorder of drug usage." While Dr. Cairns acknowledged that hair can be contaminated by cocaine in the environment, he maintained that the Psychemedics aggressive wash techniques eliminate any risk that an innocent individual will show a positive result from a hair test.
The department and the employee disagree with this contention and argue that there is a significant risk of environmental exposure causing a positive test result in an innocent individual and therefore it is inappropriate to rely on a positive hair test as the sole evidence of misconduct. The department offered the testimony of Dr. [David] Kidwell, a researcher at the Naval Research Lab who has a Ph.D. in organic chemistry and who has conducted scientific research in the field of hair testing and also written numerous journal articles on that research. In addition, Kidwell was a member of the Hair Testing Working Group which was tasked by SAMHSA with providing technical guidance during the rulemaking process when SAMHSA was formulating proposed federal mandatory guidelines for hair testing and other alternative drug testing matrices, including sweat and saliva.
Dr. Kidwell disputed the employer's contention that hair has inaccessible regions. He testified that the current scientific consensus is that hair is porous and, particularly in the presence of moisture, will absorb cocaine from the environment. Cocaine is not only incorporated into hair via the bloodstream but also via sweat from an individual drug user's sweat glands. In addition, moisture from sweat or humidity opens the cuticle and allows externally present cocaine to be incorporated into the hair. It was Dr. Kidwell's opinion that in cases of test results near the federally proposed cutoffs for a positive result, which the employee's was, the risks of false positives from environmental exposure are high. Kidwell testified about an early study he conducted with a colleague in which they tested the hair of children living with cocaine-using adults.(4) The children's hair tested positive for cocaine at levels similar to their parents despite having negative urine tests and no evidence of ingestion.
Dr. Kidwell cited numerous other studies showing that external contamination of hair with cocaine may result in a positive test result. Of particular interest to the commission are the two studies conducted by Peter Stout and other researchers at the Center for Forensic Sciences at RTI International. (5) The studies were funded by SAMHSA and by the Department of Justice to conduct additional research into hair testing for drugs of abuse. In 2006, Stout et al. published the initial results of a study into whether hair testing procedures could adequately account for external contaminants across different hair colors, exposure to sweat, and washing. The authors explained that the mechanisms by which drugs are incorporated into hair are not fully understood. "Drug incorporation into hair can occur through blood exchange at the hair follicle; exposure to sweat and sebaceous secretions; transdermal diffusion of drug from the skin; and also from exposure to the external environment, including drug residues, contaminated surfaces, and vaporized drug." (Stout 2006, pp. 490-91)
In their studies, they contaminated negative hair samples and subjected them to treatments of synthetic sweat and shampooing and then used various kinds of decontamination techniques, including the Psychemedics washing protocol. They found that BE/COC ratios significantly increased during the ten weeks of the study even though there was no additional exposure to cocaine' and that the BE/COC ratio was presumptively positive after 21 days based on the previously proposed federal guidelines for hair testing.
Cairns testified that Psychemedics tested some of the samples in the RTI study and reported the contaminated hair was below its customary cutoff. However, Cairns also made repeated claims during his testimony that any detectible cocaine in the employee's hair was solely the result of drug ingestion. These studies of contaminated hair significantly undermine that claim.
After considering the extensive evidence, the commission credits Dr. Kidwell's opinion that environmental exposure to cocaine poses a significant risk for a positive hair test result for cocaine, particularly in workplace testing situations where and individual's test levels are often found near the cutoff, as is the case here. The commission is not persuaded that this risk of false positives can be overcome by the Psychemedics Corporation's washing protocol.
The commission's reservations about environmental contamination are shared by other agencies that have considered the issue. In 2004, SAMHSA released proposed mandatory guidelines for alternative matrices, including head hair. The SAMHSA proposal included cutoffs for cocaine in hair of 500 pg/100 mg of hair (the equivalent of 5 ng/10 ml used by Psychemedics) along with a BE/cocaine ratio ≥ 5 percent. (6)
After a public comment period, SAMHSA did not adopt the proposed mandatory guidelines. In 2008, SAMHSA published a notice in the federal register:
With regard to the use of alternative specimens including hair...in Federal Workplace Testing Programs significant issues have been raised by Federal agencies during the review process which require further examination and may require additional study and analysis .... The submitted public comments and additional comments raised by Federal Agencies during subsequent review of the proposed changes to the Guidelines raised significant scientific, legal and public policy concerns about the use of alternative specimens ... in Federal agency workplace testing programs.
Mandatory Guidelines and Proposed Revisions to Mandatory Guidelines for Federal Workplace Safety Drug Testing Programs; Notices, 73 Fed. Reg. 71,858 (proposed November 25, 2008).
SAMHSA concluded that since the scientific, legal and public policy information for drug testing in oral fluid, hair and sweat patch specimens was not as complete as for urine testing, and that developing final notices concerning these matrices was more challenging, it would go forward only with the urine testing updates which were adopted in 2010. To date, no mandatory guidelines have been adopted for hair testing or other alternative testing matrices.
The RTI studies which were funded by SAMHSA and the Department of Justice following the initial proposed mandatory guidelines influenced the Federal Bureau of Investigation (FBI) in 2009 to announce that its laboratory was suspending hair testing due to the risk of false positives from contamination. The FBI announced that it would use hair test results solely as evidence of exposure.
Most recently, on February 28, 2013, the Massachusetts Civil Service Commission, following an extensive evidentiary hearing, overturned the discharges of six former Boston Police Officers who had been fired solely due to Psychemedics hair sample tests that were positive for cocaine. The 132-page opinion from In re Boston Police Department Drug Testing Appeals concluded that hair testing lacks the necessary reliability to be the sole basis for terminating a tenured Massachusetts civil servant:
The present state of hair testing for drugs of abuse, while potentially useful in clinical assessment settings, and in the context of child custody, criminal probation and pre-employment hiring decisions, does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards governing civil service employees under Massachusetts law. (7) [page 107]
The Employee's Credibility
In addition to its concerns about the reliability of the hair test result in this case, the commission also credits the employee's testimony and finds that he did not use cocaine again after he disclosed his previous drug use to the employer in January of 2009. Both times that the employer notified him that he had tested positive for cocaine, he disputed the result and submitted to additional testing, which the employee would not have done if he had in fact used cocaine and had already tested positive. Moreover, the employee offered a credible alternative explanation for the test results. The employee contemporaneously raised his ongoing relationship with a woman who used cocaine as a possible source of the contamination. While the employee misunderstood the mechanism by which he might have been exposed, the Kidwell studies involving the children of drug users support an inference that the employee's hair became contaminated after exposure to his girlfriend's home, her skin or her hair. The Boston police officers case similarly quotes from a study regarding cocaine exposure in police officers from a researcher named Mieczkowski, whose work the employer's expert, Cairns, often cites with approval:
It may be possible that with chronic, intimate, skin-to-skin contact . . . that an innocent person becomes contaminated via contact and ingestion and could attain sufficient concentration in the hair to cross the lowest threshold as an evidentiary positive.
In re Boston Police at 54.
Thus, the positive hair test results in this case may prove that the employee was exposed to cocaine, but not that he ingested it.
The expert testimony and the various studies provided in the exhibits persuade the commission that the employer's hair test is insufficiently reliable to form the sole basis for a finding of misconduct. The commission credits that there is a risk of a positive hair test result from environmental exposure, particularly in cases where the result is near the cutoff, which is the case here. The commission also gives weight to SAMHSA's history of proposing and then failing to adopt mandatory hair testing guidelines and the FBI's decision to stop using hair testing to resolve issues of usage following the results of the RTI report in 2009. It rejects the employer's contention that Psychemedics' washing protocols resolve these issues by removing all externally applied cocaine. RTI used the most recent wash protocols in its 2006 and 2009 studies and was still finding detectible cocaine and metabolites in contaminated hair. Psychemedics cannot credibly maintain that any detectible cocaine is evidence of usage under these circumstances, although its expert did so repeatedly in this case.
Should SAMHSA adopt mandatory guidelines concerning either hair testing or another alternative matrix, the commission would seriously consider that in evaluating future scientific evidence for the validity and applicability of those test results under the unemployment insurance law. However, for the present, the commission does not find that the employer's positive hair test proves by a preponderance of the evidence that the employee's discharge was for misconduct connected with his employment.
The commission therefore finds that the employee was discharged in week 41 of 2009 but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if he is otherwise qualified.
Dated and mailed July 18, 2013
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
In its briefs in support of its petition for commission review, the employer argues that its hair test is reliable evidence of the employee's drug use and that his discharge was for misconduct connected with his employment. It further maintains that the employee failed six different hair tests in 2009 and was a chronic drug user. To reach this number, it included both June tests, including the negative head hair test (which it retested during the final two days of the remand hearing to show detectible amounts below the cutoff.) It also included the September 22 hair test result and the three-part segmentation analysis of the same hair which was done in 2010. For the reasons explained above, any result below the cutoff is negative in part to screen out false positives due to exposure. Moreover, it is not reasonable to count a single hair sample tested four times as four different positive tests. The commission has already rejected the employer's contention that any detectible cocaine in the employee's hair is conclusive evidence of ingestion and the employer must ignore the cutoffs to make this claim of six positive tests.
The employer further argues that the employee's admitted use of cocaine in January was a knowing violation of the previous drug policy and should be given some weight in determining the employee's culpability in his discharge nine months later. The employer elected not to discharge the employee for this admission of drug use and encouraged its employees to disclose their drug use with the promise that an employee would not be discharged. The employer elected not to discharge the employee in January and imposed an alternative disciplinary program on the employee. The employee's admission in January is not relevant to the employee's discharge nine months later.
The employer proposes that the commission adopt a standard that a positive hair drug test result from a lab with FDA clearance and CAP forensic drug lab certification is a sufficient basis on which to make a finding of misconduct.
In Tabaska, the commission articulated its objections to hair testing, stating that "there are no federally accepted standards for hair testing methodology and the procedures used to test the employee's hair sample have not been approved by the FDA. There is not an agreed upon cut-off for any drug and its metabolites in hair." The reservations raised by the commission in that case are not resolved by the evidence in this case. First, although Psychemedics argues that its Radioimmunoassay (RIA) screening test was cleared by the FDA, FDA clearance of a medical device is not the equivalent of FDA approval.
All medical devices which a firm proposes to commercially market are subjected to the FDA section 510(k) market clearance process, which is set out in the Food, Drug and Cosmetic Act. A medical device submitted to the FDA for clearance must prove that it is "substantially equivalent" in safety and effectiveness to another lawfully marketed device, called a "predicate device." It shows this by demonstrating that it is at least as safe and effective as the legally marketed device already available. Clearance is not approval which involves a higher and more rigorous premarket review.
The U.S. Supreme Court stated in Medtronics v. Lohr, 518 U.S. 470, 478-79 (1996), that FDA clearance is a low form of review:
If the FDA concludes on the basis of the § 510(k) notification that the device is "substantially equivalent" to a pre-existing device, it can be marketed without further regulatory analysis (at least until the FDA initiates the PMA process for the underlying pre-1976 device to which the new device is "substantially equivalent"). The § 510(k) notification process is by no means comparable to the PMA process; in contrast to the 1,200 hours necessary to complete a PMA review, the § 510(k) review is completed in an average of only 20 hours. See 1987 Hearings, at 384. As one commentator noted: "The attraction of substantial equivalence to manufacturers is clear. [Section] 510(k) notification requires little information, rarely elicits a negative response from the FDA, and gets processed very quickly."
The commission's second concern in Tabaska regarding federal uniformity in hair testing procedures, methods and cutoffs is also not satisfied by the employer's proposal. There are still no federally agreed-upon cutoffs for cocaine and its metabolites in hair. There is still no uniformity in hair testing procedures and methods. The CAP accreditation offered by the employer as a reasonable alternative does not impose any uniform standards on hair testing labs. The difficulties of that are apparent in the present case. Both Psychemedics and Omega, the two labs whose reports are part of this record, are currently certified by CAP, though neither was certified in 2009 when this case first arose. Psychemedics' expert testified at length that what guaranteed the reliability of its result was its superior wash technique which removed any external contamination and he was very dismissive of the less aggressive wash protocols used by the competition. Yet, competition which does not use those wash protocols is identically credentialed by CAP. The commission has explained above why it is unpersuaded that the wash protocol is sufficient to eliminate externally contaminated cocaine that has been incorporated into the hair follicle.
Therefore, the employer's hair test does not meet either of the objections noted in Tabaska. Its FDA clearance is not the equivalent of FDA approval, and there are still no uniform standards for hair testing.
The employer also argues that it is required as a federal contractor to have a drug-free workplace policy and that hair testing is the only practical testing matrix for insuring that its employees do not use drugs. It argues that it would require a very large number of urine drug tests to provide equivalent coverage because cocaine can only be detected in urine for a short time. The commission acknowledges that the employer has a legitimate interest in maintaining a safe workplace. However, the federal government does not require that the employer use hair testing for this purpose. In fact, the federal government's own drug-free workplace policy is limited to urinalysis. This applies to its employees in safety and security-sensitive positions who are subjected to testing. Likewise, the federal Department of Transportation uses the SAMHSA guidelines in its own regulations for truckers. The very high safety interest in unimpaired truckers suggests that if the federal government was satisfied that hair testing issues were resolved, it would have adopted mandatory guidelines. The agency's statement in the 2008 federal register makes clear that SAMHSA continues to have reservations about hair testing. Wisconsin also relies on SAMHSA guidelines in its testing requirements for public works projects, state licensees and its own public safety officers. The employer's preference for hair testing is independent of any requirement by the government.
Finally, the employer cites a number of cases from other jurisdictions that have relied on hair tests. Most of these predate SAMHSA's failure to adopt mandatory guidelines and the RTI studies which confirmed the risk of exposure-related positive drug tests. The commission does not find these cases persuasive in light of more recent scientific analysis.
For all these reasons, the commission rejects the employer's argument that it has met its burden of proving that the employee was discharged for misconduct.
brandbr . urr : 178 : 2
cc: SCOT FORGE CO,
ATTN: JOHN MCGILLIVRAY
SAUL C GLAZER ,ATTORNEY AT LAW
BOB JUNCEAU, DWD - UI DIV - BOLA ATTORNEY AT LAW
VICTOR FORBERGER, ATTORNEY AT LAW
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(1)( Back ) Errata sheet issued March 14, 2012.
(2)( Back ) While individual ALJs have found hair tests to be reliable evidence of drug-related misconduct, those decisions are not binding on the commission. See, e.g., Xcel Energy Services, Inc. v. LIRC, 2013 Wisconsin 64 56 and 57; also Schmidmayr v. City of Stevens Point, UI Dec. Hearing No. 09005412WR (LIRC Jun. 10, 2010)(aff'd City of Stevens Point v. LIRC, Wis. Cir. Ct. Portage Co., Feb. 28, 2011). As the petition in Graveen demonstrates, the department has not endorsed such a result and will petition those decisions when they come to its attention.
(3)( Back ) See Wis. Admin. Code � LES 2.02 and Wis. Admin. Code � SPS 7.11.
(4)( Back ) F.P. Smith and D.A. Kidwell, Cocaine in hair, saliva, skin swabs, and urine of cocaine users' children, Forensic Science International, 83: 179-189 (1996).
(5)( Back ) P.R. Stout, J.D. Ropero-Miller, M.R. Baylor, and J.M. Mitchell, External Contamination of hair with cocaine: evaluation of external cocaine contamination and development of performance testing materials. J. Anal. Toxicol. 30: 490-500 (2006);
J.D. Ropero-Miller and P.R. Stout, Analysis of cocaine analytes in human hair: evaluation of concentration ratios in different hair types, cocaine sources, drug-user populations, and surface-contaminated specimens. Grant report to the U.S. Department of Justice Office of Justice Programs National Institute of Justice. Document number 225531, received January 2009. http//www.ncjrs.gov/pdffiles1/nij/grants/225531.pdf.
(6)( Back ) Proposed Revisions to Mandatory Guidelines for Federal Workplace Safety Drug Testing Programs; Notices, 69 Fed. Reg. 19,673-19,732 (proposed April 13, 2004).
(7)( Back ) http://www.mass.gov/anf/docs/csc/decisions/discipline/boston-police-drug-testing-appeals-022813.pdf.