Monday, March 14, 2011

Wisconsin Court of Appeals Finds Marijuana Use Amounts to Misconduct, Denies Unemployment Compensation

It's probably curious how the issue of testing positive for marijuana in a random drug test reached the Wisconsin Court of Appeals but the claimant, Albert Galindo, proposed an interesting theory for why his behavior did not amount to misconduct connected to his employment for purposes of being denied unemployment compensation.

Galindo argued that he had a documented drug addiction to marijuana, cocaine and alcohol. Therefore, his ingestion of the marijuana was not intentional. As evidence of his purported marijuana addiction, Galindo pointed to a voluntary outpatient program he completed in 1989, and a drug court program he participated in from December 2005 to October 2007.

The Labor and Industry Review Commission ("LIRC") determined that Galindo was ineligible for unemployment benefits because he was discharged for misconduct. The Commission found that Galindo was aware that he would be subject to discharge if he received a positive drug test at work. The Commission also noted that Galindo claimed to be addicted, but he neither informed his employer that he had a drug problem nor availed himself of its drug treatment program. In addition, the Commission concluded Galindo presented no medical evidence or expert opinion to support his assertion that he was addicted to marijuana and unable to abstain from its use. Galindo sought judicial review, and the circuit court reversed the Commission in its entirety. The Court of Appeals reversed the circuit court and upheld LIRC's finding that Galindo's conduct amounted to misconduct under the facts and noted Galindo failed to support his argument with competent expert medical evidence.

The case is Galindo v. L.I.R.C., Docket: 2010AP000430.

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