JEFFREY HERBERT MILLER, Complainant

MENARD INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division 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.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 31, 2006
milleje . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This case raises questions about the extent of the WFEA's protection against discrimination on the basis of use of a lawful product off the employer's premises during nonworking hours. Specifically, it raises a question about whether the term "lawful products" under the Act includes physician prescribed controlled substances and a question about whether the Act protects an individual from discharge for using off the employer's premises during nonworking hours a left over prescription for a controlled substance for a different condition than for which it was originally prescribed.

The parties agreed to a "Joint Stipulation To Facts", which served as the basis for the ALJ's decision in this matter. The stipulated facts were as follows: That the respondent hired Jeffrey Miller on September 25, 1991, that on June 28, 2004, while working as a sales associate in the Floorcoverings Department, Miller injured his back while working from a ladder and attempting to place carpet onto a carpet rack, that the respondent did not observe Miller as being intoxicated or behaving as if under the influence of a drug on June 28, 2004, that on October 30, 2000, Miller had received a prescription for Tylenol-3 (Acetaminophen) with Codeine from a Dr. Ken Klatt in the course of treatment for an abscess cyst, that Dr. Klatt retired from practice sometime between October 2000 and June 2004, that on June 29, 2004 Miller took a post-accident drug test and was notified by ChoicePoint on July 6 of a positive drug test result for Codeine, that on July 12, 2004, the respondent placed Miller on a non-disciplinary suspension, that while suspended Miller contacted ChoicePoint and explained that he had an old prescription of Tylenol-3 with Codeine and on July 14 provided ChoicePoint the prescription number and prescribing doctor's name, that between July 14th and July 30th Miller contacted ChoicePoint and was told that he needed to obtain a note from the same doctor who initially prescribed the Codeine to authorize the new use because the prescription was more than three years old but Miller did not obtain or provide such a note, that on July 30, 2004, the respondent notified Miller that his employment was terminated for violating the respondent's Drug-Free Workplace Policy, which Miller had agreed to all of the terms and conditions therein, and that Codeine is a Schedule II controlled substance under Wis. Stat. § 961.16(2)(a)4 and Tylenol-3 with Codeine is a Schedule III controlled substance under Wis. Stat. § 961.18(5)(b).

The respondent's Drug-Free Workplace Policy prohibits "having possession of, being under the influence of, testing positive for, or otherwise having in one's system, illegal drugs". Under this policy, "The term 'illegal drug' does not include the use of a drug obtained and taken under supervision by and in accordance with prescriptions or other instructions issued by a licensed health care professional and other drugs otherwise authorized to be used under the Controlled Substances Act."

Wisconsin Statute § 111.321 provides in relevant part as follows:

Subject to ss. 111.33 to 111.36, no employer...may engage in any act of employment discrimination as specified in s. 111.322 [e.g., to terminate from employment any individual] against any individual on the basis of...use...of lawful products off the employer's premises during nonworking hours.

Wisconsin Statute § 111.35(2) provides in relevant part as follows:

Notwithstanding s. 111.322, it is not employment discrimination because of use...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...of a lawful product off the employer's premises during nonworking hours does any of the following:

(a) Impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment.

(b) Creates a conflict of interest, or the appearance of a conflict of interest, with the job-related responsibilities of that individual's employment.

(c) Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities of that individual's employment.

(d) Constitutes a violation of s. 254.92(2). ⁽¹⁾

(e) Conflicts with any federal or state statute, rule or regulation.

The ALJ concluded that Miller failed to prove by a preponderance of the evidence that Menard had violated the Act by terminating his employment because of use of a lawful product. In her memorandum opinion, after noting that the term "lawful products" was not defined by the Act but that it was apparent the legislature intended to include tobacco as a lawful product and logical that alcohol is also protected, and that the existing case law provided virtually no guidance for the instant case, the ALJ stated:

...assuming that there are [specific circumstances under which an employee's use of prescription drugs is protected by the WFEA], the ALJ finds it relevant in determining whether the use of a prescription drug is protected to consider whether the employee is using a current prescription to treat a condition for which the employee is under the care of a health care provider and for which the health care provider prescribed the drug. She also finds that the employee's ability to provide verification from the health care provider of the prescription and the condition to the employer is relevant.

Assuming that specific circumstances warrant protection to an employee for the use of prescription drugs, the ALJ determines that the circumstances in this case do not fall under the protection of the WFEA. In this case, Miller decided to use a nearly 4-year old prescription for a controlled substance that a physician had prescribed to him for an abscess cyst, to treat the pain that he experienced from his back injury at work on June 28, 2004. Unfortunately for Miller, although Menard afforded him the opportunity to obtain a note from Dr. Klatt authorizing his use of Tylenol-3 with Codeine for his back pain, Miller was unable to obtain such a note, presumably because Dr. Klatt had retired at some point during the previous 4 years. The ALJ does not believe that the Wisconsin State Legislature intended the "use of lawful products off the employer's premises during nonworking hour" (sic) to encompass an employee's use of a controlled substance prescribed by a physician for a different and unrelated condition, particularly when the employee is unable to produce authorization from the health care provider for that usage. While Menard's decision to terminate Miller's employment in spite of his long tenure with the company was harsh, the ALJ finds that Menard's decision does not violate the WFEA.

ALJ mem. op., pp. 5-6.

The parties are in sharp disagreement not only with respect to whether prescriptions for controlled substances fall within the Act's protection against discrimination because of use of a lawful product, but also as to whether the complainant's use of the prescription for a controlled substance in question here conflicts with any federal or state statute, rule or regulation.

During the course of this matter the respondent has asserted various reasons in support of its argument that the WFEA was intended to only protect the use of lawful products such as tobacco and alcohol.

For instance, citing Wis. Stat. § 961.11, the respondent asserts that the controlled substances board has authority over controlled substances and that tobacco and alcohol are specifically excluded from the authority of the controlled substances board. ⁽²⁾   Further, citing Wis. Stat. §§ 961.16 and 961.18 (which lists codeine as a possible schedule II and III controlled substance), the respondent argues that codeine, or any drug containing codeine, is not a lawful product. The respondent argues that codeine has been expressly placed on the controlled substances schedule as the legislature has determined that it is a drug with a high probability of abuse (citing Wis. Stat. §§ 961.001  ⁽³⁾  and 961.17 ⁽⁴⁾ ) and that a lawful product does not have federal and state regulation that allows criminal punishment for its use (citing Wis. Stat. § 961.001  ⁽⁵⁾ ). As additional support for its argument that the Act only protects the use of products such as tobacco and alcohol, the respondent has argued that the existing Wisconsin case law on use or nonuse of a lawful product has been limited to cases involving the use of alcohol and tobacco and that the case of Patek v. Waukesha Engine Div., Dresser Indus., Inc. (LIRC, August 31, 1995), stands for the proposition that use of prescription drugs is not protected under the WFEA. The respondent has also argued that McGillen v. Plum Creek Timber Company, 964 P.2d 18 (Mont. 1998), where the Montana Supreme Court rejected an employee's claim of wrongful discharge based on a statute which provided that "the legal use of a lawful product by an individual off the employer's premises during nonworking hours is not a legitimate business reason", supports the lack of coverage for controlled substances under the WFEA. Further, the respondent argued that an analysis of the WFEA fails to provide any justification to protect controlled substances and the employment status of those who use them because "The WFEA was enacted to protect the employment status of Wisconsin residents from unfair discrimination by reason of their inclusion in certain protected groups."

The complainant has responded with arguments of his own as to why the WFEA is not limited to products such as alcohol and tobacco. The complainant argues that if the legislature had intended to protect only non-controlled substances, it would have. The complainant argues that instead the statute created a broad protection, that rather than enumerate specific products protected and not protected, the legislature shielded the use of any products not defined as illegal. The complainant argues that alcohol and tobacco, products the respondent includes in its definition of lawful products, also vary in lawfulness depending on the circumstances, that prescription medications may be analogous to alcohol and tobacco in that there are state statutory limitations on the ability for, at least, some individuals to possess and use them. Further, the complainant argues that an analysis of the WFEA provides additional justification for the protected status of prescription medications because the legislature was clear in exception 111.35(2)(e) that use of a lawful product off the employer's premises during non-work hours was not protected only if the use conflicts with a federal or state statute, rule or regulation, and that nowhere has the ALJ or respondent identified any conflict required under this statutory exception.

The existing Wisconsin case law on the subject of use or nonuse of a lawful product consists of: Patek v. Waukesha Engine Division, Dresser Industries, Inc., supra;  Hellerude v. LIRC, Case No. 96-CV-254 (Cir. Ct. LaCrosse Co., March 25, 1996; and Dable v. Petersen Health Care of Wisconsin, Inc. (LIRC, July 30, 1997). The complainant argues that the Hellerude and Dable cases fail to offer adequate guidance in this matter and that contrary to the respondent's assertion, the Patek case does not stand for the proposition that prescription drugs are not protected under the Act. Further, the complainant asserts that the McGillen case provides no guidance in this matter.

The respondent has argued, however, that the complainant's use of a controlled substance is not protected by the WFEA because his use conflicts with federal and state statutes. In support of this claim the respondent argues that the complainant's use of a controlled substance was illegal, citing 29 C.F.R. § 1630.3(a)(2), a federal regulation providing guidance on the use of illegal drugs under the Americans with Disabilities Act, as offering an analogous meaning to the use of illegal drugs under the WFEA. The language of the regulation cited states: "Illegal use of drugs means the use of drugs the possession or distribution of which is unlawful under the Controlled Substances Act....This term does not include the use of a drug taken under the supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal Law."

Further, citing a number of provisions under ch. 961, the respondent argues that the complainant's use of a controlled substance was illegal. The respondent argues that the Wisconsin Legislature wisely adopted Wis. Stat. § 961.001 et seq. to curb the abuse of controlled substances, viewed as a serious problem, because "the manufacture, distribution, delivery, possession and use of controlled substances for other than legitimate purposes has a substantial and detrimental effect on the health and general welfare of the people of this state", citing Wis. Stat. § 961.001(1m). Referencing the first sentence in Wis. Stat. § 961.38(3), the respondent states that in order to possess or use a drug that is listed as a controlled substance, an individual must have a written, oral or electronic prescription of a practitioner. ⁽⁶⁾  Utilizing Webster's Dictionary (1989 edition), the respondent states that to "prescribe" is "to lay down authoritatively for direction: or to give medical directions." Citing § 961.38 as authority, but without specifying which provision, the respondent argues that "Medical authorizations for using controlled substances are given in the course of administering medical treatment." Citing § 961.32(2)(c) as authority, the respondent argues that valid possession and use of a controlled substance is a use that follows the directions of the medical practitioner's authorization and that any use outside the direction of the medical authorization is a use that is not valid. ⁽⁷⁾ Quoting § 961.38(4g), the respondent states, "A practitioner may dispense or deliver a controlled substance to or for an individual or animal only for medical treatment or authorized research in the ordinary course of that practitioner's profession." Citing § 961.38(1)(g), the respondent states that medical treatment includes dispensing or administering a narcotic drug for pain. ⁽⁸⁾  Citing the second sentence of § 961.38(3), the respondent states that a prescription given for a schedule III or IV controlled substance must be filled within six months after the date it was prescribed, unless renewed by the practitioner. ⁽⁹⁾  The respondent cites this provision as authority that a prescription registers the user of a controlled substance for the temporary use of the controlled substance and that the legislature did not intend that possession of controlled substances could continue forever after a person secures a prescription from a medical practitioner.

The respondent argues that the complainant attempts to circumvent the Controlled Substances Act through the use of misguided logic of the medical prescription system intended for those with legitimate medical needs. The respondent argues that the complainant's "abuse" of the controlled substance violates Wis. Stat. § 961 et seq. in that he used a controlled substance without the authoritative directions of a medical practitioner and that he was not directed to use Tylenol-3 with Codeine in the course of medical treatment for his June 28, 2004 back injury as required by the Controlled Substances Act. The respondent argues that the complainant relies on a lack of an express statute declaring the use of an old prescription as illegal as the only support for his position; however, the complainant fails to recognize that the Controlled Substances Act was created to prevent the exact use in which the complainant engaged.

With respect to the respondent's asserted guidance provided by 29 C.F.R. § 1630.3(a)(2), the complainant argues that such "guidance" is not only non-legislative in nature and not part of Wisconsin law, but since it is from the ADA it is irrelevant because LIRC uses a different set of standards in applying the WFEA to disability cases. ⁽¹⁰⁾   Further, the complainant argues that a definition for the illegal use of a drug is meaningless to the present case because the WFEA concerns itself with the use of a lawful product. The complainant argues that given that construction, the question of lawfulness attaches to the product, not the use, making the threshold question "Is the product used lawful?" not "Is the use of the product lawful?" The complainant argues that once the former question is answered in the affirmative then the only question regarding legality is the Wis. Stat. § 111.35(2)(e) exception: "Did the use of the lawful product conflict with any federal or state statute, rule or regulation?" and that in the present case the answer is "no."

The complainant argues that Wis. Stat. § 961.001(1m) provides no authority for determining what is and is not lawful as it is merely the purpose/intent section of the Wisconsin Controlled Substances Act and that an introductory statement of goals to be met by the later provisions of an act is not authority for determining if a provision of the act is violated. Additionally, the complainant argues that Wis. Stat. § 961.38(4g), regarding a physician's ability to dispense a controlled substance, indicates the lawfulness of his Tylenol-3 prescription from Dr. Ken Klatt and that Wis. Stat. § 961.38(1g) provides support for his legitimate possession of the Tylenol-3. Further, the complainant argues that the window of time for the filing of a prescription contained in § 961.38(3) defines the lawfulness of a prescription at the time it is filled and given to a patient, not the time during which an individual may continue to possess the lawfully acquired medication. The complainant agrees that § 961.38 mentions that medical treatment can include the administration of a drug for pain, but notes that it does not state that "medical authorizations...are given in the course of medical treatment." The complainant also argues that not only does § 961.32 deal with possession, not use, it contains no mention of what constitutes valid use, despite the respondent's claim that it does. The complainant argues that § 961.32(2)(c) recognizes legal possession occurs pursuant to a legal order, but that there is no requirement that "valid use and possession" denies an individual the right to apply general instructions for pain control from a medical practitioner in a similar, later circumstance. The complainant argues that the respondent's position would have all prescription drug users who follow their doctor's prior advice for a later, similar medical condition be defined as criminals.

The complainant argues that the respondent is requesting that the ERD and LIRC create a new provision for the Controlled Substances Act and declare illegal the use of one's own old prescription, thus transforming the use of a lawfully prescribed and obtained drug into the use of a non-lawful product. The complainant argues that the respondent fails to cite a single statute demonstrating that possession or use of an old prescription is not allowed by law, instead citing obtusely to the Controlled Substances Act, modified by a dictionary definition enhancing the role of a physician in the consumption of medications. The complainant argues that the respondent makes unsupported assumptions regarding instructions given to him and adds " 'use' to possession, sale, manufacture or distribution as criminal conduct under the Controlled Substances Act", again, failing to cite a single law to support its position.

The respondent argues that the complainant's claim that the law only limits the possession of a controlled substance ignores the legislative intent of the Controlled Substances Act and that his argument that a controlled substance can be legally used, but not legally possessed is illogical.

The respondent, characterizing the complainant as having "abused" a controlled substance and asserting that such behavior would outrageously undermine public policy on the abuse of controlled substances, argues that a definition of "lawful product" that would safeguard the abuse of controlled substances would prevent employers from maintaining workplaces that are free from drugs; that a finding for the complainant would ratify the protection of an employee that at any time in the past received a prescription for a controlled substance (including marijuana or the dangerously addictive Oxycontin), and was later found to be abusing that drug without supervision of a physician.

The complainant responds that the characterization of him as someone who abuses substances is libelous and unfounded and that the respondent's claim that a decision favorable to him would undermine public policy regarding the abuse of controlled substances is outrageous. The complainant argues that while the respondent makes broad assertions regarding the need for employers to protect themselves, their employees and customers from controlled substances, the legislature addressed those concerns when it limited the use of such products to places other than the employer's premises and to non-work time, and in addition, Wisconsin law allows employers to take action when an employee cannot undertake adequately his or her job responsibilities (Wis. Stat. § 111.35(2)(a) and when an employee's actions conflicts with federal or state statutes (Wis. Stat. § 111.35(2)(e)).

In Hellerude, where the complainant, a self-employed person, who alleged that he was being discriminated against on the basis of use of a lawful product off the employer's premises during nonworking hours petitioned for judicial review of the commission's dismissal of his complaint, the court found no discrimination under the WFEA because "the petitioner would have to be an employee of an employer who would fire or not hire the petitioner based on the employee's use of lawful products, such as cigarettes." Hellerude offers no guidance in this matter. The complainant here was found not to be protected by the Act because he was a self-employed person. The court's identification of cigarettes as a lawful product cannot be read to preclude prescription drugs as lawful products because the issue of prescription drugs was never before the court.

In Dable, the employee, who was using alcohol to the extent that it was impairing her ability to perform her job, was discharged when she refused to undergo an alcohol assessment. Noting the exception under § 111.35(2)(a) that it was not employment discrimination because of use of a lawful product if the individual's use 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 commission found there had been no violation of the Act. Dable offers no guidance as to whether or not prescription drugs are protected under the Act.

In Patek, the complainant was refused hire after a drug screening test revealed the presence of a prescription drug called "Esgic Plus", which she had not disclosed, and the test results from a second drug screening test she was allowed to take showed that her urine sample had been too diluted. At the close of the complainant's case the ALJ granted the respondent's motion to dismiss for failure to establish a prima facie case, and in her subsequent decision made a conclusion of law that the complainant had failed to establish that the respondent had failed to hire or employ her because of her use of a lawful product. The Patek case provides little guidance in this matter since neither the ALJ's decision nor LIRC's affirmance of that decision reached any legal conclusion about whether prescription drugs were included, or excluded, from protection under the WFEA.

In the McGillen case, the plaintiff placed an ad in a local newspaper falsely stating that it was placed by his supervisor, which advertised the sale of a truck and informed interested persons to call late in the evening. The employer considered the plaintiff's actions to constitute harassment and terminated his employment for violating the employer's rules concerning intimidation. The plaintiff alleged wrongful discharge based on a Montana Statute, § 39-2-903(5), which provided in part that "the legal use of a lawful product by an individual off the employer's premises during nonworking hours is not a legitimate business reason." Affirming the district court's rejection of the plaintiff's claim, the Montana Supreme Court stated that "The purpose of [§ ] 39-2-903(5), MCA, is to protect an employee from discharge for the use of a legal product, such as alcohol or tobacco, off the employer's premises." 964 P.2d at 24. The McGillen case provides no guidance for determining whether or not prescriptions for controlled substances should be protected under the WFEA. The McGillen case did not address the issue of prescription drugs, nor has the respondent established how running a harassing newspaper ad is analogous to consuming a prescription drug.

The commission is inclined to believe that an individual who has a lawfully obtained prescription which authorizes the current use of a controlled substance for that individual's existing current medical condition is entitled to protection against discrimination under the WFEA. Based upon a review of the drafting records of the bill (S.B. 292) that ultimately became the lawful products law, the closest that the legislature ever came to defining the term "lawful products" came with former Senator Lynn Adelman's March 12, 1992 proposed substitute amendment which stated, " 'Lawful product' means a good or service whose lawful use is not prohibited by law." This amendment obviously never passed, however, since the law contains no definition of lawful products. Nevertheless, there are at least two reasons that favor a finding that lawfully obtained prescriptions for controlled substances for an individual's existing current medical condition are lawful products under the WFEA. First, as used in the statute, the words "lawful products" do not suggest any limitation as to the types of products used or not used, only that the products be lawful. Second, the WFEA states that the statute's subchapter on Fair Employment is to be liberally construed for the purpose of encouraging and fostering to the fullest extent practicable the employment of all properly qualified individuals regardless of several protected categories, including use or nonuse of lawful products off the employer's premises during nonworking hours. Wis. Stat. § 111.31(3).

Presumably, a complainant and respondent would have the following respective burdens of proof in a case of alleged discrimination based on use of a lawful product off the employer's premises during nonworking hours. First, the complainant is required to show that: 1) He or she used a lawful product off the employer's premises during nonworking hours; 2) he or she suffered an adverse employment action; and 3) there is a causal connection between the complainant's use of a lawful product off the employer's premises during nonworking hours and the adverse employment action. Second, should the complainant meet this burden, the burden would then shift to the employer to establish that the adverse action taken due to the complainant's use of a lawful product off the employer's premises during nonworking hours was not an act of employment discrimination because the complainant's use of a lawful product off the employer's premises during nonworking hours resulted in any of the conditions listed in § 111.35(2)(a)-(e).

The complainant argues that the ALJ failed to properly analyze the first element of proof; that the issue is not whether his use of the product was lawful, but, instead, whether he used a lawful product. The complainant argues that the legality of his conduct is not in question, but rather, the nature of the product used. The complainant argues that this is so because the Legislature, through Wis. Stat. § 111.35(2)(e), created an exception dealing explicitly with the legality of the employee's use or conduct. The complainant also argues that the ALJ also failed to conclude as a matter of law that his termination came within any of the other 111.35(2) exceptions.

The complainant argues that the logical extension of the ALJ's decision is that any person in the state with an old prescription medication containing a controlled substance in their medicine cabinet possesses a product that might result in that person's termination from employment, and that an individual who uses that medication to treat similar symptoms from a prior medical condition may be discriminated against by an employer.

The complainant argues that the ALJ erred in concluding that the respondent was not motivated by his use of a lawful product but by his failure to provide an after-the-fact authorization from a retired doctor to use a prescription medication already prescribed to and possessed by him. The complainant argues that because he had already provided pharmacy records showing his lawful possession of the medication, the respondent's stated reason for his suspension and termination was the positive drug test which resulted from the use of his own lawfully obtained medication.

Additionally, the complainant argues that the employer's Drug-Free Workplace Policy should be considered per se illegal because it allows the respondent to take disciplinary action against an employee for any variance from a doctor's instructions regarding medication.

The commission concludes that the complainant's claim fails due to a failure to establish the first element of his burden of proof-that he used a lawful product off the employer's premises during nonworking hours. It can not be said that the complainant used a lawful product, i.e., Tylenol-3 with Codeine, a controlled substance, for his back condition when no practitioner ⁽¹¹⁾  had ever authorized the dispensing/prescription of Tylenol-3 with Codeine for his back condition. Wis. Stat. § 961.38(1r) provides that "no controlled substance included in schedule II may be dispensed without the written prescription of a practitioner." Wis. Stat. § 961.38(3) provides that "a controlled substance included in schedule III or IV, which is a prescription drug, shall not be dispensed without a written, oral or electronic prescription of a practitioner." The complainant has not shown that he was dispensed  ⁽¹²⁾  a controlled substance for his back condition pursuant to a written (or oral or electronic) prescription of a practitioner.

Furthermore, as for the § 111.35(2)(e) exception, the exception otherwise most potentially relevant in this matter, even assuming for purposes of argument that the complainant's use of a four-year-old prescription for a controlled substance for a condition different than for which it had been prescribed did not constitute a violation of the Controlled Substances Act (or any other federal or state statute, rule or regulation), whether the WFEA should be interpreted as affording protection against employer action taken against an individual who tests positive for use of a controlled substance when that individual is not under the care of a physician and does not possess a current medical prescription to use this controlled substance, is another matter. The complainant's argument that the logical extension of the ALJ's decision that any person who uses an old prescription medication containing a controlled substance to treat similar symptoms may be discriminated against by an employer, notwithstanding, there does not appear to be any justifiable basis for interpreting the Act as affording protection against employer action taken against an individual who is not under the care of a physician, does not possess a current medical prescription authorizing the use of a controlled substance and who tests positive for use of a controlled substance in violation of the employer's Drug-Free Workplace Policy. The purpose of the respondent's Drug-Free Workplace Policy is to provide a safe, productive and healthy environment for its employees, as well as to provide for the safety, security and welfare of its customers, vendors and the general public. This was a reasonable basis for establishing that policy. Furthermore, on March 20, 2000, the complainant had signed a form acknowledging and agreeing to all the terms and conditions found in the respondent's Drug-Free Workplace Policy.

The complainant's argument that the ALJ erred in concluding that the respondent was not motivated by his use of a lawful product, but by his failure to provide an after-the-fact doctor authorization to use a prescription medication already prescribed and possessed by him because he already provided pharmacy records showing his lawful possession of the medication does not appear to be persuasive either. The pharmacy records the complainant had provided to the respondent were for a medication that had been prescribed for him four years earlier. The complainant furnished no records showing current medical authorization for the use of a controlled substance.

The commission need not address the complainant's argument that the respondent's Drug-Free Workplace Policy should be considered illegal per se because it allows the respondent to take disciplinary action against an employee for any variance from a doctor's instructions regarding medication. (As noted above, the respondent's Drug-Free Workplace Policy states that "The term 'illegal drug' does not include the use of a drug obtained and taken under supervision by and in accordance with prescriptions or other instructions issued by a licensed health care professional...") The issue before the commission is not whether or not it is illegal under the WFEA for an employer to take disciplinary action against an individual for failure to take a prescribed controlled substance in accordance with a doctor's instructions, the issue before the commission is whether or not it is illegal under the WFEA for an employer to take disciplinary action against an employee for using a prescription for a controlled substance when that employee was not under the care of a doctor and did not possess a current medical prescription authorizing his use of a controlled substance.

The discharge of an employee for what may have been the use of a single pill from an old controlled substance prescribed for an abscess cyst to alleviate a different condition (back pain) no doubt seems harsh. However, on the other hand, to hold that the lawful products statute protects an individual who is not under a doctor's care and does not have current medical authorization to use a controlled substance simply does not seem to be a reasonable interpretation of what was intended by the legislature in enacting the lawful products statute.

Finally, the commission denies the respondent's request for an award of attorney's fees and costs based on the complainant's claim. The respondent has not established any basis for its entitlement to such an award. A respondent is not entitled to such an award as the prevailing party. See for example, Rick v. Fore Way Express (LIRC, 07/25/85); Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85), aff'd sub nom. Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86); Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986); Kasonda v. Aldridge, Inc. (LIRC, 11/30/93); Dobbs v. Super 8 Motel (LIRC, 10/15/96). Further, assuming for purposes of argument that Wis. Stat. § 227.483, which authorizes a hearing examiner to award the successful party costs and reasonable attorney's fees that are directly attributable to responding to a frivolous "petition" or claim, also authorizes the commission to do so under this statute, the respondent has not shown that the complainant commenced or continued a frivolous claim.  ⁽¹³⁾

cc:
Attorney Timothy M. Scheffler
Attorney David J. Webb

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(1)( Back ) This statute section pertains to the prohibition against the purchase or possession of cigarettes or tobacco products by persons under the age of 18.

(2)( Back ) Section 961.11(1) provides that "The controlled substances board shall administer this subchapter and may add substances to or delete or reschedule all substances listed in the schedules in ss. 961.14, 961.16, 961.18, 961.20 and 961.22 pursuant to the rule-making procedures of ch. 227." Section 961.11(5) provides that "The authority of the controlled substances board to control under this section does not extend to intoxicating liquors, as defined in s. 139.01(3), to fermented malt beverages as defined in s. 125.02, or to tobacco."

(3)( Back ) The first sentence of Wis. Stat. § 961.001, titled "Declaration of intent", states, "The legislature finds that the abuse of controlled substances constitutes a serious problem for society."

(4)( Back ) Wis. Stat. § 961.17(1m)(a) indicates that a schedule III controlled substance is a substance that "has a potential for abuse less than the substances included in schedules I and II".

(5)( Back ) Wis. Stat. § 961.001(1r) notes the possibility of lengthy imprisonment terms for persons convicted of trafficking commercially in controlled substances and § 961.001(2) suggests substantial terms of prison for persons who habitually or professionally engage in commercial trafficking in controlled substances.

(6)( Back ) This provision reads, "Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug, shall not be dispensed without a written, oral or electronic prescription of a practitioner."

(7)( Back ) Section 961.32(2)(c) provides that "An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a schedule V substance" need not be registered under federal law to lawfully possess controlled substances in this state.

(8)( Back ) This statutory provision reads, "In this section, 'medical treatment' includes dispensing or administering a narcotic drug for pain, including intractable pain."

(9)( Back ) This provision reads, "The prescription shall not be filled or refilled except as designated on the prescription and in any case not more than 6 months after the date thereof, nor may it be refilled more than 5 times, unless renewed by the practitioner."

(10)( Back ) See, McMullen v. LIRC, 148 Wis. 2d 270, 275-276, 434 N.W.2d 830 (Ct. App. 1988)(Because the statutory language and scheme contained in the analogous state and federal legislation differs, sometimes significantly, and our legislature has established its own scheme for dealing with employment discrimination based on disability and has articulated the specific policy considerations underlying that scheme, the court will construe the disability statute in accordance with our legislature's intention rather than with the intention of other jurisdictions).

(11)( Back ) Wis. Stat. § 961.01(19)(a) defines a "Practitioner" as, "A physician, advanced practice nurse, dentist, veterinarian, podiatrist, optometrist, scientific investigator or, subject to s. 448.21(3), a physician assistant, or other person licensed, registered, certified or otherwise permitted to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis a controlled substance in the course of professional practice or research in this state."

(12)( Back ) Wis. Stat. § 961.01(7) provides that " 'Dispense' means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery."

(13)( Back ) Wis. Stat. § 227.483 provides in relevant part as follows:

"Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
...
(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law."

uploaded 2006/09/01