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.
Fiscal Estimate
A complete fiscal estimate is attached.
Effect on small business
This emergency 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
Place where comments are to be submitted and deadline for submission
Janell Knutson
Department of Workforce Development
Division of Unemployment Insurance
P.O. Box 8942
Madison, WI 53708-8942
Telephone: (608) 266-1639
Hearing comments will be accepted until the last scheduled hearing is conducted. DWD will hold a hearing in conjunction with the permanent rule hearing.
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.
