STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

DAVON KING, Employee

MERCHANTS DELIVERY MOVING & STORAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13601920MW


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 approximately ten months as a mover and a CDL driver for a moving and storage company. The employee's last day of work was December 31, 2012. The employee was discharged on January 31, 2013 (week 5).

Prior to his discharge, the employee was suspended on January 3, 2013 (week 1) for using marijuana off-duty. The suspension lasted until the employee was evaluated by a substance abuse professional and complied with the employer's drug and alcohol policy; specifically pages 36-39 of the employer's policy. See Exhibit 1. As part of this drug evaluation the employee's urine was tested on January 29, 2013.

The terms of the employee's suspension are spelled out in Exhibit 3, Employee Warning Notice, issued by the employer on January 3, 2013. The warning states that the employee admitted to using THC on December 31, 2012 and that as a result of this admission the employee would be relieved from duty by the safety manager until an evaluation by a substance abuse professional could be performed in accordance with the employer's policies. See pages 36-39 of employer's policies, Exhibit 1.

The warning further provided that the employee was dismissed from duties until completion of the evaluation and recommendation from the counselor that the employee is ready to return to duty per the employer's policies, including having a clean drug test at the completion of the counseling. Finally, the warning states "Consequences of Further Infractions: Termination". Both the employer and employee signed the warning on January 3, 2013.

The employee attempts to recant the effect his signature has on this warning, in particular that he never admitted to management that he used marijuana off-duty. The employee admitted using marijuana off-duty sometime before January 3 when the warning was issued and agreed he signed the warning. Further, the employee failed to state on the warning that he disagreed with the admission.

At the conclusion of the employee's drug counseling, the employee was to submit a urine sample which he did on January 29, 2013. The employee testified that prior to that day he took a test at home at his counselor's suggestion and it was negative.

The employee's urine sample was collected by Wheaton Franciscan Healthcare- All Saints; specifically collected by Gail Flancher. The urine sample was then forwarded to a lab in Lenexa, Kansas and the test analyzer at the lab identified marijuana metabolite of 75mg/ml.

Along with the department's forms (Drug Test Report and Obtain Specimen Report), the department sends a letter to parties wishing to submit drug test results into evidence at the hearing. The letter provides specific instructions that only those individuals that can personally attest to the accuracy of the reports can certify these reports with their signatures and that this usually requires the specimen report being sent to the collection agency and the drug test report being sent to the lab that analyzed the specimen.

Here, the employer failed to follow those instructions. Gail Flancher certified on the Obtain Specimen Report that Dr. Tolson collected the specimen and also certified the lab results conducted in Kansas even though Ms. Flancher was not the lab analyzer. The employer therefore failed to establish with non-hearsay evidence that the employee tested positive in January 2013 for marijuana. See Beaver v. Wel Companies Inc., UI Dec. Hearing No. 090004223MD (LIRC January 29, 2010) (no certified drug test report from lab analyzer); Jewson v. Home Depot USA Inc., UI Dec. Hearing No. 02005077MD (May 7, 2003) (no certified drug test report from lab analyzer).

The issue is whether the employee's discharge was for misconduct connected with the employment within the meaning of Wis. Stat. § 108.04(5).

On January 3, 2013 the employee was placed on suspension pending an evaluation, counseling, a recommendation he can return to work and a clean drug test. The employee was warned that failure to comply with those terms would result in termination. Termination followed the positive drug test taken on January 29, 2103. However, the drug test submitted by the employer cannot be used as a basis for a finding of misconduct because of its hearsay nature due to the employer's failure to have it properly certified. See Beaver v. Wel Companies Inc., UI Dec. Hearing No. 090004223MD (LIRC January 29, 2010) (no certified drug test report from lab analyzer).

The employer or its agent needed to follow the clearly articulated instructions on the department's cover letter attached to the necessary forms. This letter alerts employers that the forms must be certified by someone who can personally attest to the accuracy. This was not done in regard to the Drug Test Report submitted by the employer. Without a properly certified Drug Test Report in the record, there is no admissible non-hearsay evidence that the employee tested positive for marijuana after his suspension on January 3, 2013.

Because the terms of the suspension and warning lay out the consequences for failing to comply with the warning, there must be proof of an intervening action after the employee's suspension that constitutes misconduct. The positive drug test taken after the employee's suspension cannot be used because of its evidentiary failings as found above. Although there is an admission on the record by the employee to using marijuana off-duty, the admission covers the time before his suspension as it is what led to his suspension. Without certified positive drug test results, the employer failed to prove a subsequent act of misconduct after the employee's suspension.

The commission therefore finds that in week 5 of 2013, the employee's discharge was not for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2013, if otherwise qualified.

Dated and mailed August 26, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission generally holds that an employer's policy that provides for a discharge upon a positive drug test result is effectively a policy that prohibits off-duty use. See Dowling v. Walgreen Co Illinois, UI Hearing Dec. No. 05005192MD (LIRC March 3, 2006); Armstrong v. Emmpak Foods Inc., UI Hearing Dec. No. 01605775MW (LIRC November 29, 2001). The commission is satisfied that the employer's notice does cover off-duty use since it provides for a discharge upon a positive drug test. However, while the employer's policy is reasonable and provides notification of the consequences of off-duty use of illegal drugs, the employer failed to establish the positive drug test with a certified lab report. Consequently, the commission affirms the ALJ's decision.

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