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

MARTIN SANCHEZ, Employe

MANU TRONICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607093RC

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, benefits are allowed, if the employe is otherwise qualified.

Dated and mailed January 3, 2000
sanchma.usd : 105 : 2  MC 651.2  MC 651.3

/s/ David B. Falstad, Chairman

/s/ 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 misconduct provision in the statutes is Wis. Stat. § 108.04(5), which requires that the misconduct be "connected with the employe's work." In this case, the employe tested "positive" for marijuana metabolites in a drug test he took before beginning his employment with the employer. The employe's positive test means that, at some point prior to the May 28 test, he had ingested marijuana. Since this occurred before the employe began working for the employer, that use cannot constitute misconduct connected with the employment. The employer asserts that the employe's applying for work, in this case, could itself be construed as misconduct. That argument goes too far, however.

The employer also argues that, by having drugs in his system, the employe violated a condition of his employment. A positive test for drugs does not necessarily mean the drugs themselves are still in one's system, however. The drug tests measure metabolites in one's urine, metabolites which are the byproducts of chemical reactions between the drugs themselves and the individual's body. A positive test does not measure current impairment, but rather only previous usage of the substance in question.

For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct.

cc: PERSONNEL PLANNERS INC
C/O DAVID PROSNITZ

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