October 15, 2021

Volume XI, Number 288

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“The Weed Made Me Do It:” Marijuana Misconduct on the Job in Wisconsin

What is an employer in Wisconsin to do when an employee tests positive for marijuana use on a random workplace drug test? What if the employee claims he is addicted and that is what caused him to smoke pot? The Wisconsin Court of Appeals in Galindo v. LIRC, No. 2010AP430 (Wis. App. Mar. 8, 2011) (unpublished decision), found that the positive drug test at issue was misconduct despite the employee’s assertion that his ingestion of marijuana had not been intentional, but rather due to his self-proclaimed drug addiction.

Albert Galindo worked at Ashley Furniture in the upholstery assembly area. According to Ashley Furniture’s work rules, an employee “who tests positive as a result of a random/universal drug test will be discharged from further employment.” Indeed, Mr. Galindo had acknowledged in writing that he received a copy of the work rules as well as the employer’s substance abuse policy.

Unfortunately for Mr. Galindo, however, he subsequently tested positive for marijuana use. As a result, he lost his job when Ashley Furniture followed its policy and discharged him. Newly unemployed, Mr. Galindo sought unemployment benefits, the subsequent denial of which led to his case being appealed first to the Circuit Court, and then to the Wisconsin Court of Appeals.

Generally, an employee in Wisconsin is ineligible for unemployment benefits when the discharge is for misconduct connected with his or her employment. The issue, therefore, was whether Mr. Galindo’s positive test for marijuana use was “misconduct.” In his defense, Mr. Galindo argued that he had not engaged in misconduct because his ingestion of marijuana had not been intentional. It was attributable, instead, to his documented drug addiction to marijuana, cocaine, and alcohol.

When his case came before the Labor and Industry Review Commission (the “Commission”), the Commission did not buy Mr. Galindo’s argument, and found that his positive drug test result did constitute misconduct. On appeal, however, the Circuit Court reversed the Commission, and found his use of marijuana was not misconduct. On appeal again, the Court of Appeals reversed the Circuit Court and agreed with the Commission that his drug use and later  positive drug test was misconduct. As a result, Mr. Galindo was deemed ineligible for unemployment benefits.

In reaching its conclusion, the Court of Appeals noted that expert opinion would have been required to establish that Mr. Galindo did in fact have an addiction. Accordingly, as a layman, Mr. Galindo’s own opinion that he had a drug addiction was not legally sufficient. Moreover, the Court of Appeals was not persuaded that Mr. Galindo’s other evidence was sufficient to establish his addiction. Without any expert opinion to support his assertion, therefore, the Court of Appeals concluded that his actions constituted misconduct for purposes of unemployment insurance.

The message to employers is that it’s important to have a clear policy similar to Ashley Furniture’s work rules, stating explicitly that a positive drug test is a work rule violation and will result in discharge. A clear policy and proper drug testing protocols will allow employers to maintain a safe, drug free environment and enforce consequences on the rule breakers.

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume I, Number 88
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About this Author

Charles Palmer, Michael Best Law Firm, Employment Law Litigation Attorney
Managing Partner

Chuck is a go-to lawyer for complex cases involving employment law, including independent contractor and joint employment matters. Clients rely on his years of experience in dealing with state and federal enforcement agencies to develop human resource, safety and environmental policies and practices that prevent problems and save them significant expense.

Chuck has defended employers in more than 1,000 Occupational Safety and Health Administration (OSHA) citation cases over the past 26 years, including multiple six-figure and/or fatality...

262-956-6518
scott c. beightol, partner, labor and employment law, michael best law firm
Partner

Scott counsels clients on their “people” issues. Businesses, owners, and boards of directors look to Scott as their outside general counsel to ensure legal compliance of their operations and initiatives. Scott represents businesses before federal and state courts and administrative agencies throughout the country in all areas of employment law, with particular focus on:

  • Employment discrimination, including before the Equal Employment Opportunity Commission and Office of Federal Contract Compliance Programs (OFCCP)
  • Non-compete and trade secrets
  • Labor...
414-225-4994
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