EXEMPTION FROM FINDING OF EMERGENCY
The Legislature, by Section 9151 (5) (b) in 2015 Wisconsin Act 55, provides an exemption from a finding of emergency rule for the adoption of the rule. Section 1. Chapter DWD 131 is created to read: PRE-EMPLOYMENT DRUG TESTING, SUBSTANCE ABUSE TREATMENT PROGRAM AND JOB SKILLS ASSESSMENT
131.001 Definitions. (1) Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter. (2) Notwithstanding ch. DWD 100, all of the following definitions apply to this chapter: (a) “Controlled substances” has the meaning given under s. 108.133 (1) (a), Stats. (b) “Positive results” means a test that confirms the presence of one or more controlled substances conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.
(c) “Substance abuse treatment provider” means an individual or organization that is licensed by a state agency to administer substance abuse treatment services to individuals that use controlled substances.
(d) “Substance abuse treatment program” means the services offered by a substance abuse treatment provider, beginning with an assessment.
DWD 131.10 Pre-employment testing for the presence of controlled substances. (1) Positive results of a test; applicability. An employing unit may report to the department the positive results of a test for the presence of controlled substances conducted on an individual if all of the following apply:
(a) The test for the presence of controlled substances was conducted as a condition of an offer of employment and the employing unit informed the individual, before testing, that the positive results may be submitted to the department.
(b) The test was conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.
(c) The individual tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance.
(d) The employing unit complies with all of the provisions of this chapter.
(2) Reporting positive results of a test to the department. To report positive results to the department, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days from the date on which the employing unit received the positive results:
(a) The name, address, and telephone number of the employing unit, and if applicable, the unemployment insurance account number of the employing unit.
(b) The name, address, telephone number, and social security number of the individual that tests positive for the presence of controlled substances.
(c) The following information related to the conditional offer of employment that the employing unit offered to the individual:
1. Documentation of the conditional offer of employment.
2. The date on which the employing unit extended the conditional offer of employment to the individual.
3. The date on which employment would begin, the rate of pay offered to the individual, the number and arrangement of hours, and the kind of work that would be performed.
4. The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the presence of controlled substances.
(d) The date and manner in which the employing unit informed the individual that positive results may be submitted to the department.
(e) The following information related to the administration of the test and positive results:
1. The name, address and telephone number of the laboratory that conducted the test.
2. The date on which the individual submitted to the test.
3. The controlled substances detected in the test.
4. A copy of the laboratory’s report.
(f) The date the employing unit received the results of the test from the laboratory.
(g) The date and manner in which the employing unit withdrew the conditional offer of employment after the employing unit received the positive results.
(h) Any additional information requested by the department.
Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53707 by telephone at (608) 232-0633 or (414) 438-7705 or access the form online at www.dwd.state.wi.gov. (3) Individual declining to submit to a test for the presence of controlled substances. An employing unit may notify the department that an individual declined to submit to a test for the presence of controlled substances if all of the following apply:
(a) The test for the presence of controlled substances was required as a condition of an offer of employment and the employing unit informed the individual, before testing, that the employing unit may notify the department if the individual declines to submit to the test.
(b) The employing unit complies with all of the provisions of this chapter.
(4) Notification to department of individual declining test. To notify the department that an individual declined to submit to a test for the presence of controlled substances, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days from the date on which the individual declined to submit to the test:
(a) The name, address, and telephone number of the employing unit, and if applicable, the unemployment insurance account number of the employing unit.
(b) The name, address, telephone number, and social security number of the individual that declined to submit to a test for the presence of controlled substances.
(c) The following information related to the conditional offer of employment from the employing unit to the individual:
1. Documentation of the conditional offer of employment.
2. The date on which the employing unit extended the conditional offer of employment to the individual.
3. The date on which employment would begin, the individual’s pay rate, the number and arrangement of hours, and the kind of work that would be performed.
4. The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the presence of controlled substances.
(d) The date and manner in which the employing unit informed the individual that the employing unit may notify the department if the individual declined to submit to a test for the presence of controlled substances.
(e) The following information related to the individual declining to submit to a test for the presence of controlled substances:
1. The date the individual declined to submit to a test.
2. Documentation that the individual declined to submit to the test.
3. The date the employing unit received notification that the individual declined to submit to the test.
(f) The date and manner the employing unit withdrew the conditional offer of employment after the employing unit received notice that the individual declined to submit to a test for the presence of controlled substances.
(g) Any additional information requested by the department.
Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53708, by telephone at (608) 232-0633 or (414) 438-7705 or access the form online at www.dwd.state.wi.gov. (5) Department determination of an individual receiving benefits. (a) The department shall determine, after receiving the information submitted by an employing unit under sub. (2) or (4), whether the individual is receiving benefits under ch. 108, Stats. (b) If the department determines the individual is receiving benefits under par. (a), the department shall use the information reported under sub. (2) or (4) to determine eligibility under s. 108.04 (8) (b), Stats. The department shall provide information regarding the documentation submitted by an employing unit under sub. (2) or (4) to the individual. (6) Rebuttable presumption for failure to accept suitable work. (a) If the department determines an individual is receiving benefits under sub. (5) (a), the department shall provide the individual an opportunity to overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats. (b) An individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., if the individual tested positive for the presence of one or more controlled substances, and the individual establishes by a preponderance of the evidence, any of the following: 1. The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the presence of controlled substances.
2. The employing unit withdrew the offer of employment before the employing unit received the positive results of the test.
3. The individual held a valid prescription at the time of the test for each controlled substance detected in the test.
4. The test for the presence of controlled substances was not conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.
5. The requirements under s. 108.04 (9), Stats., apply to the work offered. 6. Any circumstances which the department determines are beyond the individual’s control.
(c) The individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., by declining to submit to a test for the presence of controlled substances if the individual establishes by a preponderance of the evidence, any of the following: 1. The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the presence of controlled substances.
2. The individual was unable to complete a test for the presence of controlled substances due to medical reasons.
3. The individual accepted an offer of employment from another employing unit before or at the time the individual declined to submit to the test under sub. (3).
4. The employing unit required the individual to pay for the test.
5. The requirements under s. 108.04 (9), Stats. apply to the work offered. 6. Any circumstances which the department determines are beyond the individual’s control.
(7) Period of ineligibility and requalification requirements for benefits. (a) An individual under this chapter that has failed, without good cause, to accept suitable work due to the positive results of a test without presenting evidence of a valid prescription, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government. (b) Notwithstanding par. (a), an individual under this chapter that has failed, without good cause, to accept suitable work due to the positive results of a test without presenting evidence of a valid prescription, may maintain eligibility for benefits under ch. 108, Stats., by enrolling in and complying with a substance abuse treatment program under s. DWD 131.30 and completing a job skills assessment as prescribed under s. DWD 131.40. (c) An individual under this chapter that has failed, without good cause, to accept suitable work by declining to submit to a test for the presence of controlled substances, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government. DWD 131.30 Substance abuse treatment program. (1) Eligibility. (a) An individual that tests positive for the presence of controlled substances under this chapter may enroll in a substance abuse treatment program if all of the following apply:
1. The individual is otherwise eligible for benefits under ch. 108, Stats. 2. The services offered by a substance abuse treatment program are administered by a substance abuse treatment provider approved by the department.
(b) An individual eligible under par. (a) may enroll in a substance abuse treatment program one time per benefit year.
(2) Authorization to release records. An individual that is eligible to enroll in a substance abuse treatment program under sub. (1) shall provide written authorization to the department for the disclosure of the individual’s records by the substance abuse treatment provider.
(3) Assessment. A substance abuse treatment provider shall use an assessment conducted under this chapter in order to determine the extent and severity of the individual’s use of controlled substances, and to determine the type of intervention necessary to address the individual’s use of controlled substances.
(4) Substance Abuse treatment plan. The substance abuse treatment provider shall develop a substance abuse treatment plan that identifies the goals, objectives, resources and dates of treatment for the individual. The substance abuse treatment provider shall provide a copy of the substance abuse treatment plan to the department.
(5) Substance abuse treatment program enrollment. Within 5 working days of being directed by the department, an individual shall contact an approved substance abuse treatment provider to schedule an assessment. An individual is considered to be enrolled in a substance abuse treatment program if any of the following apply:
(a) The individual schedules an assessment for the earliest date that is available with a substance abuse treatment provider.
(b) The individual requests placement on a waitlist for an assessment if the individual is unable to schedule an assessment with a substance abuse treatment provider. An individual that requests placement on a waitlist shall certify on a weekly basis, in a manner prescribed by the department, that the individual will schedule an assessment when services first become available with a substance abuse treatment program provider.
(6) Substance abuse treatment program compliance. (a) An individual shall comply with all requirements of a substance abuse treatment plan as prescribed in sub. (4). Compliance in a substance abuse treatment program shall be satisfied by any of the following:
