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

Subject: PJK Finishing Co., Inc. v. Labor and Industry Review Commission and Walter J. Pouchert (Case 99-CV-830, Wis. Cir. Ct., Waukesha Co., December 17, 1999)

Digest Codes: MC 651.5  MC 652.1  

The employe worked as a plater for the employer, a metal finishing business. In the fall of 1997, it instituted a substance abuse policy which provided for controlled substance testing for: (1) employes involved in any work-related accident resulting in personal injury or causing damage to company property; and for (2) employes for whom there existed reasonable cause to believe the use of controlled substances might be interfering with job performance, or that the employer’s policy against being under the influence of controlled substances was otherwise being violated. The employer did not personally inform the employe of this policy.

On 11/5/97, the employer conducted a company-wide drug screening in which the employe tested positive for the presence of THC in his system. The employe signed a written agreement in which he attested to the fact that he was no longer using any controlled substance, and agreed to submit to an additional test for the presence of THC in his system, no sooner than two weeks from 11/5/97. The agreement also noted that the employe’s continued employment was contingent upon his test being negative. A retest was subsequently administered and it was negative.

On 9/1/98, the employe was at work when he informed his supervisor that he was experiencing back problems stemming from a 1988 automobile accident unrelated to his employment. Other than the back pain, the employe appeared normal to the supervisor, and neither his physical nor mental capacities appeared to be impaired. The supervisor sent the employe to a medical clinic for a treatment of his back pain, but while he was there, the employer required him to give a urine sample to test for the presence of drugs. The sample was positive for the presence of marijuana metabolites. As a result of this positive test, the employer discharged the employe.

The ATD and the commission majority found no misconduct, citing of the failure of the employer to follow its own drug testing policy when it tested the employe at the medical clinic. The employer appealed and argued that use of drugs constitutes misconduct, regardless of whether the employer followed its drug testing policy. In the alternative, the employer argued that the agreement the employe signed on 11/13/97, was a “last chance” agreement, and authorized the drug test at the medical clinic.

Held:   The finding of no misconduct is affirmed. The commission’s determination that the final drug test was not done in accordance with the employer’s drug testing policy is supported by credible and substantial evidence. So too, is the commission’s finding that the 11/13/97 agreement was not a “last chance” agreement, but only required one negative drug test subsequent to the signing of the agreement, and that test had been administered. The commission’s determination regarding misconduct is entitled to great weight. It is reasonable for the commission to require that a drug test, which does not involve an employe being under the influence while on the job, be performed in accordance with the employer’s established drug testing policy.

[Commission decision]

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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