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


JAMES A MARINI, Employe

S P RICHARDS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603889MW


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 February 2, 2000
marinja:usd : 105 : 6   MC 651.2  MC 653.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer's representative asserts that the employe tested positive in a drug test, that the test was taken during working hours, and that that should mean he was under the influence while working and should be disqualified from unemployment insurance eligibility therefor. There was no evidence to indicate, though, that the employe was impaired on the job. The drug test could only show previous usage by the employe, and not current impairment. The commission has always required, when the claim is actual impairment, that the employer establish that impairment by more than a positive drug test alone. Given the length of time chemical metabolites remain in an individual's system, a positive test alone simply does not constitute competent evidence of impairment at the time of the test. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

NOTE: The dissent first makes an argument not even the employer makes, that is, that the employe violated Section VII of the employer's policy (which is entitled "Discipline" and states essentially that an employe who tests positive for unauthorized controlled substances will be subject to appropriate discipline up to and including termination). The dissent ignores the provision in Section II of the employer's policy, titled "Prohibited Substances and Conduct," and which states essentially that the use of unauthorized controlled substances or drug-related paraphernalia "on Company property or during working hours is strictly prohibited." The dissent asserts that the employer gave as the reason for discharge the employe's failure to follow company policy on substance abuse. As indicated just above, though, the employer states two different policies in its rules; one prohibits any positive test for unauthorized controlled substances, while another prohibits the use of unauthorized controlled substances on company property or during working hours. These are not the same prohibitions and, since the work rules are those of the employer, the commission believes it only fair to interpret any ambiguity in those rules against the employer.

In addition, the dissent minimizes the effect of the "Employee Separation Notice," which stated that the reason for discharge was "Reporting under the influence of alcohol or drugs," by suggesting that that report was a form from the employer's agent for unemployment insurance claims. This is a misstatement of the record. On its face, the form indicates that it was issued by the employer, and not by its agent.


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. VII 1., of the employer policy provides "Any employe who is found to be at work in and unfit condition , or wh(o) tests positive for substances prohibited by this policy will be subject to appropriate discipline up to and including termination." Under II the prohibited substances are defined as "All narcotics including but not limited to, marijuana, cocaine (including "crack" and other cocaine derivatives, morphine, heroin, amphetamines and barbiturates. The term does not include those controlled substances used pursuant to and in accordance with a valid prescription when brought to the attention of the Local Manager."

The employe was tested under the employer annual screening and tested positive for cannabinoids (marijuana) at 110 NG/ML. The employer followed the appropriate testing methods using a screening test and then a confirmation test. I do not find that the employer needed to prove that the employe was under the influence of a drug at work or impaired at work as the majority does. The employer policy gave the employe notice that a positive drug screen would be cause for his discharge. The employe signed for a copy of the employer substance abuse policy January 16, 1998. I believe the employer policy with its notice of discharge for a positive drug test connects the employe's off duty conduct to work.

Unlike the majority, I do not depend on page two of exhibit 1 to show that the employer fired the employe for reporting to work under the influence of alcohol or drugs. It appears to me that exhibit 1, page 2 is a form from R.E. Harrington, Inc which handles the employer's unemployment claims. The form contains reasons listed by Harrington and not the employer. The blank checked by the employer does not change the reason for discharge. The employer termination form gives "failure to follow company policy on substance abuse" as the reason for discharge. Therefore, I would reverse and find that the employe was discharged for misconduct connected with his employment.

_____________________________________
Pamela I. Anderson, Commissioner


cc: CAROL WEIDINGER
C/O R E HARRINGTON INC


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