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

DEMETRIUS O FUNCHES, Employee

GREAT LAKES CHEESE OF WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12202310EC


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 approximately two years as a production worker for the employer, a cheese manufacturing business. His last day of work was June 18, 2012 (week 25). He was discharged on June 19, 2012 (week 25).

The employee sustained an injury at work for which he received medical attention. Under the employer's written drug free workplace policy, after any accident, an individual is required to undergo drug testing. The policy further provides that a positive test is grounds for discharge. The employee was aware of this policy.

On June 12, 2012, the employee provided a saliva sample to be tested for the presence of illegal drugs. The employer received a response from the lab which tested the sample that the test was positive for marijuana. On the basis of this test result, the employee was discharged for violating the employer's drug policy.

At the hearing, the employee denied using marijuana during the course of his employment. He speculated that the positive test result may have occurred because he was in the presence of family members who had used marijuana on the prior weekend.

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

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."

It is the employer's burden to prove by a preponderance of the evidence that an employee's discharge was for misconduct. In this case, the only evidence offered by the employer that the employee violated its drug policy is a positive test result for marijuana from a saliva test. The employee denies that he used marijuana.

The record is silent on whether the employer's saliva drug test reliably measures marijuana use in tested individuals. The employer argues that it is the employee's burden to show that its saliva test is unreliable. The commission disagrees. The employer offered no scientific evidence to support its claim that its test is reliable. The commission relies upon the U.S. Department of Health and Human Services (DHHS) and its sub-agency Federal Substance Abuse and Mental Health Services Administration (SAMHSA) for guidelines on drug testing methodologies. The Wisconsin legislature has endorsed relying on SAMHSA drug testing guidelines. Brandt v. Scot Forge Co., UI Dec. Hearing No. 09006150MD (LIRC Jul. 18, 2013).

SAMHSA has issued no mandatory guidelines or uniform standards regarding saliva testing and has not certified any labs to perform saliva testing.(1) The employer's lab accreditation from SAMHSA applies to its urine testing program, since urine testing programs are the only programs currently accepted by SAMHSA. While SAMHSA has proposed mandatory guidelines for saliva testing in the past and has indicated an interest in doing so in the future, it has not adopted any mandatory guidelines for saliva at the present time. However, as the commission stated in Brandt:

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.

The commission concludes that the employer has failed to prove that its drug test result is sufficiently reliable to form the sole basis for a finding of misconduct. In the absence of other evidence that the employee violated the employer's drug policy, the commission credits the employee's testimony that he did not use marijuana contrary to the employer's drug policy.

The commission therefore finds that in week 25 of 2012, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

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 otherwise qualified.

Dated and mailed August 30, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the ALJ erred in rejecting its saliva drug test on the basis of the department's policy limiting drug testing to urinalysis. It cites the Wisconsin court of appeals' decision in Scot Forge Co. v. LIRC & Brandt, 340 Wis. 2d. 498 (Ct. App. 2012) (unpublished) in support of this argument.

The commission held an extensive evidentiary hearing in response to the court of appeals' order in that case which vacated the commission's prior decision and remanded the matter for new findings and decision. Brandt v. Scot Forge Co., UI Dec. Hearing No. 09006150MD (LIRC Jul. 18, 2013) is now available for review on the commission's website.

In that decision, the commission provides a history of the department's policy on drug testing and its rationale for limiting drug testing methods to urinalysis. As noted above, the commission relies on SAMHSA guidelines in determining what drug testing methods will be accepted and currently SAMHSA has only adopted mandatory guidelines for urine testing.

The commission's decision in Brandt also made extensive findings on the science of hair drug testing based on the expert scientific evidence provided by the parties. It determined that the employer's positive hair drug test result was insufficiently reliable to form the sole basis for a finding of misconduct. The employer in this case offered no equivalent scientific evidence for the commission to evaluate its claims of reliability.

The legislature recently created Wis. Stat. § 108.04(5)(a) which defines misconduct in drug-related discharges as:

A violation by an employee of an employer's reasonable written policy concerning the use of alcohol beverages, or use of a controlled substance or a controlled substance analog, if the employee:

1. Had knowledge of the alcohol beverage or controlled substance policy; and
2. Admitted to the use of alcohol beverages or a controlled substance or controlled substance analog or refused to take a test or tested positive for the use of alcohol beverages or a controlled substance or controlled substance analog in a test used by the employer in accordance with a testing methodology approved by the department.
(Emphasis added.)

This section is effective with determinations issued or appeals occurring on or after January 5, 2014. While it is not determinative in this case, it codifies the legislature's support for leaving the matter of acceptable drug testing methods to the discretion of the department.

Finally, the employer argues that its saliva test is Food and Drug Administration (FDA) cleared and therefore reliable. The commission rejected a similar argument in Brandt regarding that employer's hair test. As the commission pointed out in that case, FDA pre-market clearance is a low threshold and it is not the equivalent of the FDA approval process. The commission does not accept that a test with an FDA market clearance is a sufficiently reliable basis on which to find misconduct in the absence of SAMHSA mandatory guidelines providing uniform standards and cutoffs for saliva testing.


funchde_urr . doc : 178 :

cc: ATTORNEY DAVID HERTEL
WHYTE HIRSCHBOECK DUDEK SC

 



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Footnotes:

(1)( Back ) 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).