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

PHYLLIS J. DABLE, Complainant

PETERSEN HEALTH CARE OF WISCONSIN INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9400777

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter on March 19, 1996. A timely petition for review was filed. The commission received the file from the division on July 21, 1997.

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 (copy attached) is affirmed.

Dated and mailed: July 30, 1997
dableph.rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant's employment was terminated when she refused to undergo an assessment for alcohol abuse after the respondent suspected that she was using alcohol excessively and that such use was having a negative effect on her ability to discharge her duties as administrator of its nursing home. Prior to the termination of her employment the complainant had assured the respondent that she "did not drink on duty."

The complainant has alleged that the respondent's actions were discriminatory because its actions showed "malice and reckless disregard for the protected right regarding use of lawful products."

Sections 111.322 and l11.321 of the Wisconsin Fair Employment Act make it an act of employment discrimination for an employer to terminate an individual from employment on the basis of use or nonuse of lawful products off the employer's premises during nonworking hours. An exception under Wis. Stat. § 111.35(2) provides, however, that it is not employment discrimination because of use or nonuse of a lawful product off the employer's premises during nonworking hours for an employer to terminate an individual from employment if the individual's use or nonuse of a lawful product off the employer's premises during nonworking hours impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment.

The complainant's employment was not terminated because of use or nonuse of a lawful product off its premises during nonworking hours, her employment was terminated because she refused to undergo an alcohol assessment the purpose of which was to assure the respondent that she was fully capable of discharging her duties. The respondent had reason to believe that the complainant was using alcohol to the extent that it was having a negative effect on her ability to perform her job and therefore had a legitimate interest in determining whether or not she was capable of discharging her duties.

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