Wisconsin Legislature: 001 - CR 16-036 Rule Text

Plain Language Analysis

This rule implements the requirements specified under Act 55, relating to pre-employment drug testing, substance abuse treatment program and job skills assessment. Act 55 created s. 108.04 (8) (b), Stats., which provides the following:

• There is a rebuttable presumption that an individual failed, without good cause, to accept suitable work if DWD determines, based on a report submitted by an employing unit, that an employing unit required the individual to submit to a test for the presence of controlled substances as a conditional offer of employment and withdrew the conditional offer after the individual declined to submit to the test, or tested positive for one or more controlled substances without providing evidence of a valid prescription for each controlled substance.

• For an individual that declines to submit to a test, the individual shall be ineligible for benefits until the individual qualifies for benefits in accordance to the rules promulgated by DWD.

• For an individual that tests positive for the presence of controlled substances without providing evidence of a valid prescription, the individual shall be ineligible for benefits until the individual qualifies for benefits in accordance with the rules promulgated by DWD or the individual may maintain eligibility for benefits if the individual enrolls in and complies with the requirements of a substance abuse treatment program and completes a job skills assessment.

In addition, Act 55 provides that DWD shall:

• Create and provide a substance abuse treatment program for individuals who engage in the unlawful use controlled substances.

• Specify criteria that a claimant must satisfy in order to be considered in full compliance with the substance abuse treatment program.

• Create and conduct a job skills assessment for claimants who engage in the unlawful use of controlled substances.

• Identify criteria that an individual must satisfy to be considered in full compliance with the requirements of the job skills assessment.

This rule implements the requirements specified under Act 55 and creates a process for an employing unit to voluntarily submit the positive results of a test conducted on an individual to DWD, if the test was required as a condition of an offer of employment and the individual was informed that the results may be submitted to DWD, the test was conducted or confirmed by a laboratory certified by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, and the individual tested positive for one or more controlled substances without evidence of a valid prescription. The department is relying on the standards enforced by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services to ensure that prescription information is collected and evaluated by the laboratory and presented in the laboratory report. In addition, the rule identifies the process by which the employing unit can report the positive results of a test to DWD.

An employing unit may voluntarily notify DWD that an individual declined to submit to a test for the presence of controlled substances as a condition of employment and the individual was informed before testing, that the employing unit may notify the department if the individual declined to submit to the test.

If a report is submitted by an employing unit of the positive results of a test conducted on an individual as a condition of an offer of employment, or the employing unit notifies DWD that an individual declined to submit to a test for the presence of controlled substances, DWD shall determine if the individual is receiving unemployment insurance benefits. If DWD determines that the individual is receiving unemployment insurance benefits, there is a rebuttable presumption that the individual failed to accept suitable work. This rule provides the individual may overcome the presumption by proving certain facts by a preponderance of the evidence.

Under this rule, an individual that fails a pre-employment drug test without presenting evidence of a valid prescription or declines to submit to a test is ineligible for benefits until the individual earns wages at least 6 times the individual’s weekly benefit rate beginning after the week in which the individual tests positive or declines to submit to the test.

An individual that tests positive for controlled substances without presenting evidence of a valid prescription may maintain benefit eligibility by enrolling in and complying with a substance abuse treatment program, and completing a job skills assessment.

This rule also identifies the parameters for a substance abuse treatment program for individuals that test positive for the presence of one or more controlled substances (without a valid prescription). In addition, this rule does all of the following:

• Requires an individual to schedule an assessment with a substance abuse treatment provider within 5 working days as directed by the department.

• Requires an individual to comply with all conditions of a treatment plan developed by a substance abuse treatment provider.

• Specifies that the substance abuse treatment provider will determine if an individual is in compliance with the substance abuse treatment program requirements, and inform the department on a weekly basis of the individual’s compliance.

• Provides that DWD will pay for the reasonable costs associated with the substance abuse treatment plan requirements for each week that the individual is otherwise eligible for unemployment insurance benefits under ch. 108, Stats.

• Requires an individual to complete a job skills assessment as directed by the department.

The substance abuse treatment and job skills assessment under this chapter only apply to circumstances of pre-employment drug testing.

Summary of, and comparison with, existing or proposed federal statutes and regulations

There are no existing or proposed federal regulations relating to pre-employment drug testing.

Comparison with rules in adjacent states

Michigan law previously provided that an individual would be disqualified from receiving unemployment insurance benefits if an employer withdrew a conditional offer of employment after the individual failed or refused to take a pre-employment drug test. Mich. Comp. Laws Ann. § 421.29(1)(e). The failed or refused pre-employment drug test would be considered a failure to accept suitable work. Michigan law did not provide drug treatment as an option for claimants to maintain benefit eligibility. Michigan’s law was in effect from October 29, 2013 until October 29, 2014.

DWD is not aware of any unemployment insurance disqualification for a failed pre-employment drug test in Illinois, Minnesota or Iowa.

Summary of factual data and analytical methodologies

DWD consulted with the Unemployment Insurance Advisory Council and the Departments of Health Services, Corrections, and Children and Families to identify the parameters of a substance abuse treatment program for claimants who engage in the unlawful use of controlled substances.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

The effect on small business was determined by reviewing estimates of costs a business would incur in order to comply with the law.

Effect on small business

This rule does not have an economic impact on small businesses as defined in s. 227.114 (1), Stats. DWD’s regulatory review coordinator may be contacted by email at karl.dahlen@dwd.wisconsin.gov, or by calling (608) 266-9427.

Agency contact person

Questions and comments related to this rule may be directed to:

Janell Knutson

Department of Workforce Development

Division of Unemployment Insurance

P.O. Box 8942

Madison, WI 53708-8942

Telephone: (608) 266-1639

E-Mail: janell.knutson@dwd.wi.gov

Place where comments are to be submitted and deadline for submission