LRB-2263/1
MED:cjs:cs
2015 - 2016 LEGISLATURE
April 24, 2015 - Introduced by Representatives Rohrkaste, Knodl, Jagler,
Gannon, A. Ott, Murphy, R. Brooks, Kerkman, Quinn, T. Larson, Edming,
Macco, Petersen, Kleefisch, Kapenga and Kremer, cosponsored by Senator
Olsen. Referred to Committee on Public Benefit Reform.
AB192,1,6
1An Act to amend 108.04 (8) (a), 108.14 (8n) (e), 108.141 (7) (a) and 108.16 (6m)
2(a); and
to create 20.445 (1) (ak), 20.445 (1) (aL), 108.04 (8) (b) and 108.133 of
3the statutes;
relating to: requiring certain unemployment insurance
4claimants to submit to drug tests, eligibility for unemployment insurance
5benefits following a drug test, granting rule-making authority, and making an
6appropriation.
Analysis by the Legislative Reference Bureau
Under federal law, a state may require a claimant to submit to a test for the
unlawful use of controlled substances (drug test) as a condition of receiving
unemployment insurance (UI) benefits if the claimant: 1) was terminated from
employment with his or her most recent employer because of the unlawful use of
controlled substances; or 2) is an individual for whom suitable work, as defined under
a state's UI law, is only available in an occupation that regularly conducts drug
testing, as determined in regulations issued by the United States Secretary of Labor
(federal regulations). As of April 20, 2015, final federal regulations have not been
issued.
This bill requires the Department of Workforce Development (DWD) to
establish a program to require claimants who apply for regular UI benefits to submit
to drug tests. The bill requires DWD to determine, when a claimant applies for
regular UI benefits, whether the claimant is an individual for whom suitable work
is only available in an occupation described in the federal regulations. If DWD
determines that the claimant is such an individual, DWD must conduct a screening
on the claimant to determine whether there is a reasonable suspicion that the
claimant has engaged in the unlawful use of controlled substances. If the screening
indicates such a reasonable suspicion, DWD must require the claimant to submit to
a drug test.
The bill provides that, if the claimant declines to submit to such a test, the
claimant is ineligible for UI benefits for 52 weeks or until a subsequent claim for
benefits, whichever is later. If the claimant submits to the drug test, but does not test
positive for any controlled substance without a valid prescription, the claimant may
receive UI benefits if otherwise eligible and may not be required to submit to any
further drug test until a subsequent claim for benefits. If the claimant submits to
the drug test and tests positive for one or more controlled substances without a valid
prescription, the bill provides that the claimant is ineligible for UI benefits for 52
weeks or until a subsequent claim for benefits, whichever is later, except that
following the positive test, the claimant may maintain his or her eligibility for UI
benefits by enrolling in a state-sponsored substance abuse treatment program and
undergoing a state-sponsored job skills assessment. The claimant remains eligible
for benefits for each week the claimant is in full compliance with any requirements
of the substance abuse treatment program and job skills assessment.
The bill also requires DWD to conduct, every ten years, a survey of employers
to identify occupations for which employers require pre-employment, random, or
reasonable suspicion drug testing as a condition of obtaining or continuing
employment. The bill then requires DWD to promulgate rules identifying
occupations for which more than 50 percent of employers so surveyed indicated that
drug testing is required as a condition of obtaining or continuing employment, as well
as additional rules identifying occupations in certain specified categories listed in
the bill. The bill then requires that DWD likewise apply the above provisions related
to screening, drug testing, substance abuse, and eligibility for benefits to claimants
for whom suitable work is only available in an occupation identified by DWD in either
set of rules.
In addition, the bill allows an employing unit to voluntarily submit to DWD the
results of a drug test that was conducted on an individual as preemployment
screening or notify DWD that an individual declined to submit to such a test. If the
results of the test indicate that the individual has tested positive for one or more
controlled substances without a valid prescription, or if the individual declined to
submit to such a test, the bill provides that there is a presumption, rebuttable as
provided in rules promulgated by DWD, that the claimant has failed to accept
suitable work when offered. If the presumption is not rebutted, the claimant is
ineligible for UI benefits as if the claimant had tested positive in or declined to submit
to a drug test conducted by DWD, beginning with the week in which DWD receives
the report.
The bill provides that if a claimant continues to receive benefits after testing
positive for the unlawful use a controlled substance, the claimant's benefits are
charged to the balancing account of the unemployment reserve fund, which is a
pooled account financed by all employers that pay contributions and used to pay
benefits that are not chargeable to any employer's account.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB192,1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](http://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
AB192,2
3Section
2. 20.445 (1) (ak) of the statutes is created to read:
AB192,3,64
20.445
(1) (ak)
Unemployment insurance administration; substance abuse
5treatment. Biennially, the amounts in the schedule to provide substance abuse
6treatment to claimants for unemployment insurance under s. 108.133 (2) (c).
AB192,3
7Section
3. 20.445 (1) (aL) of the statutes is created to read:
AB192,4,28
20.445
(1) (aL)
Unemployment insurance administration; controlled
9substances testing. Biennially, the amounts in the schedule to conduct testing for
1controlled substances and for related expenses under s. 108.133, other than
2providing substance abuse treatment under s. 108.133 (2) (c).
AB192,4
3Section
4. 108.04 (8) (a) of the statutes is amended to read:
AB192,4,184
108.04
(8) (a)
If Except as provided in par. (b), if an employee fails, without good
5cause, to accept suitable work when offered, the employee is ineligible to receive
6benefits until the employee earns wages after the week in which the failure occurs
7equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in
8employment or other work covered by the unemployment insurance law of any state
9or the federal government. For purposes of requalification, the employee's weekly
10benefit rate shall be that rate which would have been paid had the failure not
11occurred. This paragraph does not preclude an employee from establishing a benefit
12year during a period in which the employee is ineligible to receive benefits under this
13paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).
14The Except as provided in par. (b), the department shall charge to the fund's
15balancing account any benefits otherwise chargeable to the account of an employer
16that is subject to the contribution requirements under ss. 108.17 and 108.18
17whenever an employee of that employer fails, without good cause, to accept suitable
18work offered by that employer.
AB192,5
19Section
5. 108.04 (8) (b) of the statutes is created to read:
AB192,5,1320
108.04
(8) (b) There is a rebuttable presumption that an employee has failed,
21without good cause, to accept suitable work when offered if the employee declines to
22submit to a test for the presence of controlled substances in a test conducted on the
23employee as preemployment screening or the employee tests positive for one or more
24controlled substances in such a test without evidence of a valid prescription, as
25evidenced by a report submitted to the department by an employing unit in
1accordance with s. 108.133 (4). If the employee declines to submit to such a test, the
2employee shall be ineligible for benefits as if the employee had declined to submit to
3a test under s. 108.133 (3) (a), beginning with the week in which the department
4receives the report. If the employee tests positive in such a test without evidence of
5a valid prescription, the employee shall be ineligible for benefits as if the employee
6had tested positive under s. 108.133 (3) (c), beginning with the week in which the
7department receives the report, except as provided under s. 108.133 (3) (d). The
8department shall promulgate rules specifying how a claimant may overcome the
9presumption in this paragraph. The department shall charge to the fund's balancing
10account any benefits otherwise chargeable to the account of an employer that is
11subject to the contribution requirements under ss. 108.17 and 108.18 whenever an
12employee of that employer fails, without good cause, to accept suitable work as
13described in this paragraph.
AB192,6
14Section
6. 108.133 of the statutes is created to read:
AB192,5,16
15108.133 Testing for controlled substances. (1) Definitions. In this
16section:
AB192,5,1817
(a) Notwithstanding s. 108.02 (9), "controlled substance" has the meaning
18given in
21 USC 802.
AB192,5,2019
(b) "Job skills assessment" means an assessment conducted by the department
20under sub. (2) (d).
AB192,5,2321
(c) "Occupation that regularly conducts drug testing" means an occupation
22identified in the regulations issued by the federal secretary of labor under
42 USC
23503 (l) (1) (A) (ii).
AB192,5,2524
(d) "Screening" means the screening process created by the department under
25sub. (2) (a) 3.
AB192,6,2
1(e) "Substance abuse treatment program" means the program provided by the
2department under sub. (2) (c).
AB192,6,43
(f) "Valid prescription" means a prescription, as defined in s. 450.01 (19), for a
4controlled substance that has not expired.
AB192,6,8
5(2) Drug testing program. The department shall establish a program to test
6claimants who apply for regular benefits under this chapter for the presence of
7controlled substances in accordance with this section and shall, under the program,
8do all of the following:
AB192,6,109
(a) Promulgate rules to establish the program. The department shall do all of
10the following in the rules promulgated under this paragraph:
AB192,6,1311
1. Establish a process to test claimants for the presence of controlled
12substances. In establishing the process, the department shall adhere to any
13applicable federal requirements regarding drug testing.
AB192,6,1714
2. Identify the parameters for a substance abuse treatment program for
15claimants who engage in the unlawful use of controlled substances and specify
16criteria that a claimant must satisfy in order to be considered in full compliance with
17requirements of the substance abuse treatment program.
AB192,6,1918
3. Create a screening process for determining whether there is a reasonable
19suspicion that a claimant has engaged in the unlawful use of controlled substances.
AB192,6,2320
4. Identify the parameters for a job skills assessment for claimants who engage
21in the unlawful use of controlled substances and specify criteria that a claimant must
22satisfy in order to be considered in full compliance with the requirements of the job
23skills assessment.
AB192,7,224
(am) Promulgate rules identifying occupations for which more than 50 percent
25of employers surveyed under par. (e) indicated that pre-employment, random, or
1reasonable suspicion drug testing is required as a condition of obtaining or
2continuing employment.
AB192,7,33
(ar) Promulgate rules identifying occupations in all of the following categories:
AB192,7,44
1. Those that regularly involve work that with or around children.
AB192,7,55
2. Those that regularly require the operation of a motorized vehicle.
AB192,7,66
3. Those in the field of construction.
AB192,7,77
4. Those that require the operation of heavy machinery.
AB192,7,98
5. Those in which persons regularly carry a firearm, as defined in s. 167.31 (1)
9(c).
AB192,7,1110
(b) When a claimant applies for regular benefits under this chapter, do all of
11the following:
AB192,7,1312
1. Determine whether the claimant is an individual for whom suitable work is
13only available in an occupation that regularly conducts drug testing.
AB192,7,1514
2. Determine whether the claimant is an individual for whom suitable work is
15only available in an occupation identified in the rules promulgated under par. (am).
AB192,7,1716
2m. Determine whether the claimant is an individual for whom suitable work
17is only available in an occupation identified in the rules promulgated under par. (ar).
AB192,7,2018
3. If the claimant is determined by the department under subd. 1. to be an
19individual for whom suitable work is only available in an occupation that regularly
20conducts drug testing, conduct a screening on the claimant.
AB192,7,2421
4. If the claimant is determined by the department under subd. 2. to be an
22individual for whom suitable work is only available in an occupation identified in the
23rules promulgated under par. (am), conduct a screening on the claimant if a
24screening is not already required under subd. 3.
AB192,8,4
14m. If the claimant is determined by the department under subd. 2m. to be an
2individual for whom suitable work is only available in an occupation identified in the
3rules promulgated under par. (ar), conduct a screening on the claimant if a screening
4is not already required under subd. 3. or 4.
AB192,8,75
5. If a screening conducted as required under subd. 3., 4., or 4m. indicates a
6reasonable suspicion that the claimant has engaged in the unlawful use of controlled
7substances, require that the claimant submit to such a test.
AB192,8,98
(c) Create and provide a substance abuse treatment program in accordance
9with the rules promulgated under par. (a) 2.
AB192,8,1110
(d) Create and conduct job skills assessments in accordance with the rules
11promulgated under par. (a) 4.
AB192,8,1512
(e) Conduct a survey of employers to identify occupations for which employers
13require pre-employment, random, or reasonable suspicion drug testing as a
14condition of obtaining or continuing employment. The department shall conduct a
15new survey under this paragraph every 10 years.
AB192,8,20
16(3) Drug testing. (a) If a claimant is required under sub. (2) (b) 5. to submit
17to a test for the presence of controlled substances and the claimant declines to submit
18to such a test, the claimant is ineligible for benefits under this chapter until 52 weeks
19after the date of the declining or until the claimant qualifies for benefits in a
20subsequent benefit year, whichever occurs later.
AB192,9,221
(b) If a claimant who is required under sub. (2) (b) 5. to submit to a test for the
22presence of controlled substances submits to the test and does not test positive for
23any controlled substance or the claimant presents evidence satisfactory to the
24department that the claimant possesses a valid prescription for each controlled
25substance for which the claimant tests positive, the claimant may receive benefits
1under this chapter if otherwise eligible and may not be required to submit to any
2further test for the presence of controlled substances until a subsequent benefit year.
AB192,9,103
(c) If a claimant who is required under sub. (2) (b) 5. to submit to a test for the
4presence of controlled substances submits to the test and tests positive for one or
5more controlled substances without presenting evidence satisfactory to the
6department that the claimant possesses a valid prescription for each controlled
7substance for which the claimant tested positive, the claimant is ineligible for
8benefits under this chapter until 52 weeks after the date of the test or until the
9claimant qualifies for benefits in a subsequent benefit year, whichever occurs later,
10except as provided in par. (d).
AB192,9,1811
(d) A claimant who tests positive for one or more controlled substances without
12presenting evidence of a valid prescription as described in par. (c) may maintain his
13or her eligibility for benefits under this chapter by enrolling in the substance abuse
14treatment program and undergoing a job skills assessment. Such a claimant
15remains eligible for benefits under this chapter, if otherwise eligible, for each week
16the claimant is in full compliance with any requirements of the substance abuse
17treatment program and job skills assessment, as determined by the department in
18accordance with the rules promulgated under sub. (2) (a) 2. and 4.
AB192,9,2219
(e) The department shall charge to the fund's balancing account the cost of
20benefits paid to an individual that are otherwise chargeable to the account of an
21employer that is subject to the contribution requirements of ss. 108.17 and 108.18
22if the individual receives benefits based on the application of par. (d).
AB192,9,25
23(4) Preemployment drug testing. (a) An employing unit may, in accordance
24with the rules promulgated by the department under par. (b), voluntarily submit to
25the department the results of a test for the presence of controlled substances that was
1conducted on an individual as preemployment screening or notify the department
2that an individual declined to submit to such a test as a condition of employment,
3along with information necessary to identify the individual. Upon receipt of any such
4results of a test conducted and certified in a manner approved by the department or
5notification that an individual declined to submit to such a test, the department shall
6determine whether the individual is a claimant receiving benefits. If the individual
7is a claimant receiving benefits, the department shall, in accordance with rules
8promulgated by the department under par. (b), use that information for purposes of
9determining eligibility for benefits under s. 108.04 (8) (b).
AB192,10,1010
(b) The department shall promulgate rules necessary to implement par. (a).
AB192,10,16
11(5) Application of this section. (a) Notwithstanding subs. (2) (b) 1., 3., and
125., (c), and (d) and (3), subs. (2) (b) 1., 3., and 5., (c), and (d) and (3) do not apply until
13the rules required under sub. (2) (a) take effect. The department shall submit to the
14legislative reference bureau for publication in the Wisconsin administrative register
15a notice identifying the date on which subs. (2) (b) 1., 3., and 5., (c), and (d) and (3)
16will be implemented.
AB192,10,2117
(b) Notwithstanding sub. (2) (b) 2. and 4., sub. (2) (b) 2. and 4. do not apply until
18the rules required under sub. (2) (am) take effect. The department shall submit to
19the legislative reference bureau for publication in the Wisconsin administrative
20register a notice identifying the date on which sub. (2) (b) 2. and 4. will be
21implemented.
AB192,11,222
(bm) Notwithstanding sub. (2) (b) 2m. and 4m., sub. (2) (b) 2m. and 4m. do not
23apply until the rules required under sub. (2) (ar) take effect. The department shall
24submit to the legislative reference bureau for publication in the Wisconsin
1administrative register a notice identifying the date on which sub. (2) (b) 2m. and 4m.
2will be implemented.
AB192,11,73
(c) Notwithstanding sub. (4) (a) and s. 108.04 (8) (b), sub. (4) (a) and s. 108.04
4(8) (b) do not apply until the rules required under sub. (4) (b) take effect. The
5department shall submit to the legislative reference bureau for publication in the
6Wisconsin administrative register a notice identifying the date on which sub. (4) (a)
7and s. 108.04 (8) (b) will be implemented.
AB192,11,128
(d) The secretary may waive compliance with any provision under this section
9and s. 108.04 (8) (b) if the secretary determines that waiver of the provision is
10necessary to permit continued certification of this chapter for grants to this state
11under Title III of the federal Social Security Act or for maximum credit allowances
12to employers under the federal Unemployment Tax Act.
AB192,7
13Section
7. 108.14 (8n) (e) of the statutes is amended to read:
AB192,12,214
108.14
(8n) (e) The department shall charge this state's share of any benefits
15paid under this subsection to the account of each employer by which the employee
16claiming benefits was employed in the applicable base period, in proportion to the
17total amount of wages he or she earned from each employer in the base period, except
18that if s. 108.04 (1) (f), (5), (7) (a), (c), (e), (L), (q), (s), or (t), (7m) or (8) (a) or
(b), 108.07
19(3), (3r), or (5) (b)
, or 108.133 (3) (e) would have applied to employment by such an
20employer who is subject to the contribution requirements of ss. 108.17 and 108.18,
21the department shall charge the share of benefits based on employment with that
22employer to the fund's balancing account, or, if s. 108.04 (1) (f) or (5) or 108.07 (3)
23would have applied to an employer that is not subject to the contribution
24requirements of ss. 108.17 and 108.18, the department shall charge the share of
25benefits based on that employment in accordance with s. 108.07 (5) (a) and (b). The
1department shall also charge the fund's balancing account with any other state's
2share of such benefits pending reimbursement by that state.
AB192,8
3Section
8. 108.141 (7) (a) of the statutes is amended to read:
AB192,12,104
108.141
(7) (a) The department shall charge the state's share of each week of
5extended benefits to each employer's account in proportion to the employer's share
6of the total wages of the employee receiving the benefits in the employee's base
7period, except that if the employer is subject to the contribution requirements of ss.
8108.17 and 108.18 the department shall charge the share of extended benefits to
9which s. 108.04 (1) (f), (5), (7) (a), (c), (e), (L), (q), (s), or (t), (7m) or (8) (a) or
(b), 108.07
10(3), (3r), or (5) (b)
, or 108.133 (3) (e) applies to the fund's balancing account.
AB192,9
11Section
9. 108.16 (6m) (a) of the statutes is amended to read:
AB192,12,1412
108.16
(6m) (a) The benefits thus chargeable under s. 108.04 (1) (f), (5), (5g),
13(7) (h), (8) (a)
or (b), (13) (c) or (d) or (16) (e), 108.07 (3), (3r), (5) (b), (5m), or (6),
108.133
14(3) (e), 108.14 (8n) (e), 108.141, 108.151, or 108.152 or sub. (6) (e) or (7) (a) and (b).
AB192,10
15Section
10.
Nonstatutory provisions.
AB192,12,1616
(1)
Unemployment insurance; drug testing.
AB192,12,2117
(a)
Scope statements for rules. The department of workforce development shall
18present the statements of scope of the rules required under sections 108.04 (8) (b) and
19108.133 (2) (a), (am), and (ar) and (4) (b) of the statutes, as created by this act, to the
20governor for approval under section 227.135 (2) of the statutes no later than the
21180th day after the effective date of this paragraph.