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


LEE O REED, Employe

MILWAUKEE TRANSPORT SERVICES INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96606850MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about two years and three months for the employer, a public transportation business. His last day of work was September 7, 1996 (week 36).

During the first two years and two months of the employe's employment he was employed as a bus driver. The employer was obligated by federal law to test bus drivers randomly for drugs. (1)   The employe tested positive for cocaine on July 26, 1996 and was originally discharged. Under the employer's substance abuse policy (Exhibit 4), for a first positive drug test the penalty is immediate termination with EAP option to retain employment. By letter dated August 6, 1996, the employer notified the employe that he was being referred to EAP in lieu of discharge. The employe was required to serve a minimum 15-day suspension during which he would not be eligible to be placed into a conditional employment position. The August 6, 1996, letter stated:

"After 90 days, you will be allowed to return to driving position at Fiebrantz Station pending EAP recommendation and a negative return to duty drug and alcohol test."

(Exhibit 3)

Pursuant to the employer's substance abuse policy, the employe was designated a "Category III" participant in its employe assistance program. (2)   The employe was required to attend counseling sessions and follow the recommendations of EAP. As a Category III participant, and under federal law, the employe was unable to perform work in a safety-sensitive position, e.g. as a bus driver, until he was evaluated by a substance abuse professional to determine whether he was in need of assistance in resolving his drug use and took a return to duty drug test with a negative result. (3)   Under the employer's policy, an individual who tests positive for cocaine is not allowed to return to a safety-sensitive position for 90 days.

The employer's policy provides for "conditional employment" in non-safety sensitive positions, subject to job availability. For a Category III participant, seniority is frozen effective the date of the infraction but is recaptured, without interruption, effective the date of satisfactory completion of the EAP. Selection for available designated non-safety sensitive position vacancies is by seniority, except that Category I participants have priority over Category II and III participants. Newly designated Category I participants may bump Category II and III participants out of conditional employment jobs they have been assigned. Category III participants may be reinstated following approval from the Substance Abuse Professional after successful completion of EAP, and a negative return to duty drug/alcohol test. Category I and II participants are entitled to reinstatement to their former classifications upon successful completion of the EAP. If there is no vacancy, such employes are permitted to "bump" immediately into their former position on the basis of seniority. Reinstatement for Category III participants is made into the former job classification on the basis of seniority. Program participants are not entitled to backpay.

Category II and III participants not conditionally employed are entitled to continue to participate in the Transit Employe Medical Insurance plan. Category II and III participants can claim pay for accumulated vacation at the time of their release from pay status, but cannot receive pay for sick leave or any other benefits, except for absences covered under the employer's FMLA policy. The employer continues to pay the employer's portion of medical insurance premiums for a maximum of 12 months for participants unable to return to work during their EAP participation.

The employe did serve a 15-day suspension. On August 27, 1996, the employe was placed in a conditional/non-safety sensitive position. However, on September 7 he was "bumped" from that position by a more senior worker. The employe was informed that he was laid off. The employe was not told whether he would be recalled. The employe understood at the time he was bumped from the conditional position that if there was a vacancy in another conditional employment position he could take that job. He did not contact the employer regarding any other work because he did not believe there was any more work after he had been bumped.

The employe attended counseling sessions during first-shift hours and upon completion of his rehabilitation program a return to duty drug test was scheduled. The employe took that drug test on October 25, 1996, and again tested positive for cocaine. (Exhibit 2, certified test results.) Pursuant to the employer's substance abuse policy, the employe was terminated from his employment.

The issues to be decided is whether the employe was terminated from his employment, voluntarily terminated his employment, or whether his employment was suspended, and whether the employe was able to work and available for work.

The commission finds that in week 36 of 1996, the only week noticed for hearing, the employe's employment was suspended by the employer because the employe was unable to do or unavailable for suitable work otherwise available with the employer. The employe's employment was not terminated by the employer in week 36 of 1996. The employe continued to attend scheduled counseling sessions following his last day of work, the employe still received benefits under the employer's policy and was entitled to other benefits, such as coverage under the employer's FMLA, and had been specifically informed that he would be reinstated to a driving position following completion of his counseling and a negative drug test. Both parties acted consistent with an ongoing employment relationship.

Further, the employe was not truly laid off in week 36 of 1996. The employe lost his position not because there was no work available for him, but because his actions resulted in his inability to perform his regular job as a bus driver. In the interim between the employe's first positive test result and the completion of his counseling and return to work drug test, the employer found work for the employe. However, the fact that such work was no longer available must be traced back to the employe's own actions in engaging in cocaine use in violation of the employer's policy and for which he knew he could be discharged or rendered unavailable for or unable to do his normal job. It was clear by virtue of the August 6 letter, and the employe's continued attendance at counseling sessions, that the employe and the employer anticipated the employe would return to work as a bus driver when his 90 day mandated suspension from a safety- sensitive positions was up.

There is no requirement under Wis. Stat. § 108.04 (1)(b)1., that the suspension be for a definite period or that the employe be given a definite recall date. Indeed, often it is either within the employe's control or within neither the employe's control or the employer's control to determine when the employe will again be able to work and available for work with the employer. As indicated above, both the employe and employer were acting consistent with an ongoing employment relationship and the employe had been informed by virtue of the August 6, letter that he would return to driving after 90 days and he had completed rehabilitation and a return to work drug test.

The hearing in this matter did not adduce necessary testimony to allow the commission to determine whether the employe was able to work and available work in his labor market during his suspension. Accordingly, the commission will remand that issue to the department for investigation and determination.

Finally, because the administrative law judge found that the employe was discharged in week 36 of 1996, a subsequent initial determination issued on February 19, 1997, found that no separation occurred. The commission hereby sets aside the department's February 19, 1997, initial determination and remands this matter to the department to determine whether the employe is eligible for benefits based on a separation from employment in week 44 of 1996.

The commission therefore finds that in week 36 of 1996 the employe's employment was suspended by the employer because he was unable to do or unavailable for suitable work otherwise available with the employer within the meaning of Wis. Stat. § 108.04 (1)(b)1.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for investigation and determination of whether the employe was able to work and available for work in his labor market beginning in week 36 of 1996. The department's February 19, 1997, initial determination is set aside. The department is directed to investigate and determine the employe's eligibility for benefits based on a separation from in employment in week 44 of 1996.


Dated and mailed: July 23, 1997
reedlee.urr : 132 : 1  AA 120

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer first argues in its petition that the September 7, 1996 layoff should be viewed as a retroactive discharge based on the positive October 25, 1996, drug test. The employer argues that since the commission and courts have on occasion sanctioned changing a discharge into a suspension in certain instances, it should change the lay off occurring on September 7, 1996, into a discharge. However, unlike the cases in which the commission, consistent with the parties actions, have converted a suspension to a discharge, the act that caused the separation here was distinct from the act which caused the initial layoff. The initial layoff was due to the initial positive test and resulting lack of conditional employment, while the separation was due to the later second positive test result. Further, the September 7, 1996 layoff followed a previously imposed 15-day disciplinary suspension. The commission agrees with the administrative law judge that the employer has chosen the penalty for the initial positive test result.

The commission further rejects any argument that the employe's "layoff" was a reinstitution of the disciplinary suspension. It was not a disciplinary suspension as the length of the disciplinary suspension had previously been determined by the employer to be 15-working days and the employe served that suspension before returning to work.

The employer further argues that the employe was precluded by law from performing his customary work as a bus driver and therefore it should be found that he lost his "license" under Wis. Stat. § 108.04 (1)(f). Wis. Stat. § 108.04 (1)(f) provides:

"If an employe is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employe's employment is suspended or terminated because the employe's license is suspended, revoked or not renewed due to the employe's fault, the employe is not eligible to receive benefits until five weeks have elapsed since the end of the week in which the suspension or termination occurs or the license is reinstated or renewed, whichever occurs first. . . ."

First, there was no testimony that the employe lost any license. The employer maintains that the employe had to have a commercial drivers license to perform his work. However, no testimony was adduced to establish this as a fact. In addition, there was no evidence presented that the employe's commercial drivers license, or any license required by law, was suspended or revoked. The law requires only that the employe cease working in a safety- sensitive position until he has been evaluated by a substance abuse professional to determine if he needs assistance in resolving problems, comply with referral and evaluation provisions, and take a return to duty drug test with a verified negative result.

Finally, the employer argues that the employe should be ineligible for benefits because he did not contact the employer, after being informed that he was laid off, to inquire about other positions. First, the employer is the party that informed the employe that he was being bumped out of the conditional position. Second, and more importantly, the employer offered no testimony that additional work was available to the employe had he applied for such work. This is fatal to its argument.

The employer also asks the commission to determine that the employe was discharged for misconduct in week 44 of 1996, when he lost his employment following the second positive drug test. However, that separation was not noticed for hearing. Accordingly, the issue is more appropriately resolved by remanding the matter to the department.

cc: 
ATTORNEY GREGG FORMELLA
QUARLES & BRADY


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) 49 CFR Part 653, Prevention of Prohibited Drug Use in Transit Operations.

(2)( Back ) A Category I participant is an employe with an alcohol/drug problem who voluntarily requests assistance. A Category II participant is an employe subject to termination for non-alcohol/non-drug related rule violations who acknowledges drug/alcohol problems. A Category III participant is an employe who is subject to termination for off-duty drug use and who requests EAP participation to preserve employment.

(3)( Back ) 49 CFR 653.35 - .37.