In the matter of the
unemployment benefit claim of


Involving the account of


Hearing No. 89001059MD

On March 16, 1989, the Department issued an Initial Determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the determination which was held on April 17, 1989 in Middleton, Wisconsin, before Administrative Law Judge James R. Sturm. The department issued an Appeal Tribunal Decision on April 20, 1989 affirming the Initial Determination. The employer timely petitioned for Commission review of the April 20 decision, and the employer has submitted a brief in support of its position.

Based on the applicable law, records, and evidence in this case, the Commission makes the following:


The employe worked as a production laborer for the employer, a creamery. He began this employment on January 3, 1989 and his last day of work for the employer was February 28, 1989. The employer discharged the employe on March 3, 1989, because the employe "tested positive" for use of marijuana. The issue is whether the employe's use of marijuana constitutes misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes. The commission believes it does.

The employer contracts with the federal government to produce butter. The employer thus must comply with the Drug-Free Workplace Act of 1988, or risk suspension of contract payments, termination of contracts, or debarment. This act requires, inter alia, that subject employers provide a work site at which their employes are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances. The employer, bot in order to comply with this Act and because some of its co-workers had expressed concern over having to work with co-workers who illegally used controlled substances, instituted a drug and alcohol-fitness for duty policy. Pursuant to this policy, whenever an accident occurs for which the employe involved requires medical attention, the employe must submit to a "fitness for duty" examination before returning to work. Part of this examination consists of urinalysis. The employer's policy also expressly states that off-duty activity involving illegal drugs or other controlled substances is a violation of the policy.

The employe was aware of the employer's policy concerning controlled substances. The employe had attended an employe meeting at which the policy was discussed. The employe also had received a copy of the policy, and had signed a statement to the effect that he had read and understood the employer's policies concerning drug and alcohol abuse, and that he would comply with them.

On February 28, 1989, the employe cut his finger severely enough to require medical treatment. Pursuant to the employer's policy, the medical examination of the employe included a urinalysis. On the drug screening consent form, the employe indicated that he had taken marijuana the last weeks in February. The employe conceded at hearing he had smoked marijuana on Sunday, February 26, at approximately 8 p.m. The urinalysis, finally, showed that the employe had taken marijuana. The screening test was positive for marijuana, and confirmed by the highly accurate gas chromatography/mass spectrometry procedure. When the employer learned the result of the urinalysis, it discharged the employe for the latter's violation of the employer's prohibition against illegal use of controlled substances.

Section 108.04(5) of the Wisconsin Statutes disqualifies one from benefit eligibility who is discharged for misconduct connected with his or her employment. For violation of an employer's rule to constitute misconduct, the rule must be reasonable. If the rule concerns off-duty conduct by the employe, for it to be reasonable it must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). For the following reasons, the commission believes the employer's prohibition against off-duty drug use is reasonable.

It cannot be gainsaid that drug abuse in the workplace is a significant and costly problem. In addition, impairment may exist without the impaired employe showing any outward signs of impairment detectable by a lay person or even by a physician. See Skinner v. Railway Labor Executives' Association, 109 S. Ct. 1402, 1419 (1989). It almost goes without saying, too, that there is no legally protected right to engage in the activity in which the employer has prohibited its employes from engaging. Because of these factors, the commission believes it is reasonable for an employer to impose a "blanket" prohibition against illegal use of controlled substances by its employes, rather than one which only prohibits impairment while on duty. The employer has significant interests in providing a drug-free workplace; these include a general interest in a competent and productive workforce, the employer's ability to contract with the federal government, and factors the employer expressly identified in its fitness for duty policy, including its recognition of alcohol and drug misuse as a potential health, safety, and security problem, the employer's responsibility to provide its customers a safe and reliable product, the employer's commitment to the safety, health, and well-being of its employes. Finally, the employe agreed to abide by the employer's prohibition against all illegal drug use. For the above reasons, therefore, the employer's prohibition against off-duty illegal use of controlled substances is a reasonable rule, and the employe's violation of it was misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes.

The Commission therefore finds that in week 9 of 1989, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes.

The commission finds further that the employe was paid benefits in the amount of $54 for week 9 of 1989, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the Statutes; pursuant to section  108.22(8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.


The Appeal Tribunal Decision is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer. He is also ineligible for benefits based on employment with other employers beginning in week 9 of 1989, and continuing thereafter until he has again been employed within at least seven weeks in employment covered by the Unemployment Compensation Law of any state or the federal government and has earned wages in that employment equaling at least 14 times his weekly benefit rate with the employer against whom benefits are initially chargeable. The employe is required to repay $54 to the Unemployment Reserve Fund.

Dated and mailed February 1, 1990
105 : CD8348  MC 651.1 MC 651.2  MC 692.02

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

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