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

YOLANDA F WHITE, Employe

HEALTH CARE & RETIREMENT CORP OF AMERICA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601552MW

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed June 22, 1999
whiteyo.usd : 105 : 6 MC 652.1  MC 652.2

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of no misconduct. The employer's representative asserts that the employer has the right to order a drug test based upon "probable cause." This assertion is simply wrong. The employer's policy states that the employer may order a drug test when "reasonable cause" exists. No competent evidence in the record established reasonable cause for the employer's directive that the employe go for a drug test, however. In addition, the employer specifically told the employe that the test it was ordering her to take was a random test. The employer's work rules contain no provision whatsoever for random drug testing, however.

The employer's directive to the employe was not in keeping with its own work rules. Under such circumstances an employe is not required, for unemployment insurance purposes, to follow that directive. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: R E HARRINGTON

HRC MANORCARE
HEARTLAND OF MILWAUKEE

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