Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: John Maniaci  v. LIRC, DILHR, UC and Wisconsin Gas Company, Case No. 95-CV-000486 (Wis. Cir. Ct. Milwaukee Co., May 7, 1996)

Digest Codes:  MC 651.5  MC 652.9

The employe worked in a safety-sensitive position as an industrial fitter for Wisconsin Gas Company. He tested positive for cocaine use in a November 19, 1993 random drug test. Thereupon, he signed a "Last-Chance Agreement" which required him to submit to unannounced drug testing for up to 24 months. The agreement provided that he would be terminated if he tested positive for drug use during this 24-month period.

On June 7, 1994, the employer required him to give a urine sample which was positive for cocaine ingestion. The employer’s medical review officer confronted the employe with the result on June 13, 1994, and the employe requested a retest of the sample. The employer’s policy allowed for such retest when an employe requested it within 72 hours after being notified of a positive test. The retest was performed at the same laboratory and was again positive. The employe was discharged.

The employer was also subject to a federal regulation which allowed an employe to request a retest within 60 days, performed by a second laboratory. The employe discovered this rule and on the 60th day after being notified of his positive test, he mailed a letter to the employer requesting another test at an independent laboratory. A third test was performed but at the same laboratory and it was again positive. The appeal tribunal and the commission found misconduct.

The employe asserted on appeal that he had been denied due process because he was misled by the employer’s 72-hour rule into not requesting a retest by a second lab within the 60 days allowed by the federal regulation. Held: The finding of misconduct is affirmed. The employe was entitled by the federal rule and by the employer’s rule to have a retest done at an independent laboratory, but when he made his request for a retest on June 15, 1994, he did not request that it be at an independent laboratory. Evidence showed that the employe was aware that he could have made such a request, and the employer is not required to perform an open-ended number of retests in order to comply with federal regulations. The federal regulation only requires one retest, which the employe had pursuant to his request of June 15, 1994.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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