STATEMENT OF SCOPE
Department of Workforce Development
Rule No:
Relating to:
Pre-Employment Drug Testing
Rule Type
Permanent and Emergency
Finding/nature of emergency
Detailed Description of the Objective of the Proposed Rule
The proposed permanent and emergency rules will amend
chs
.
DWD 100
,
126
,
127
,
128
,
129
,
132
,
140
and
149
,
relating to the
u
nemployment
insurance
program, and create
ch.
DWD 131
,
subchapters I and II,
relating
to pre-employment drug testing for
unemployment insurance benefit claimants
.
The proposed rules will establish guidelines that
may
disqualify
benefit
claimants
who refuse to take a
pre-employment
drug test, or
who
fail a
pre-employment
drug test and cho
o
se not to participate in
a drug rehabilitation program
.
The proposed rules
will
provide that
refusing
to take
a pre-employment drug test, or failing
a pre-employment drug test and
choosing not
to participate in a drug rehabilitation program
,
may
amount to the refusal of suitable work
and
cause
ineligibility for unemployment benefits.
Description of Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
N
o existing policies
are
relate
d
to the proposed permanent or emergency rules. A
s directed by
2015 Wis. Act 55
,
the
proposed rules will:
•
Establish
procedures
for employers who voluntarily submit the results of a
positive
drug test conducted on an individual as a condition
al
o
ffer of employment.
•
Establish
procedures
for employers who notify the department that
an
individual declined
to submit to a drug test
as a conditional offer of employment.
•
Establish standards for rebutting a presumption of refusal of suitable work if a claimant declines to take a
pre-employment
drug test or
fails a pre-employment
drug test.
•
Identify
the period of ineligibility
for
unemployment
benefits
that must elapse
, or the requalification requirements th
at must be satisfied, or both, for
a claimant
who declined to submit to a
pre-employment
drug test or
failed
a
pre-employment
drug test
.
•
Identify the parameters for a substance abuse treatment program for claimants who
engage in the unlawful use of controlled substances and specify criteria that a claimant must satisfy to be considered
enrolled in and
in full compliance with the requirements of a sub
stance abuse treatment program.
•
Provide that
if a
claimant enroll
ed
in a substance abuse treatment program
is required to
submit to additional drug tests,
the claimant
is allowed
to have at least one more positive test
,
following the initial drug test
, and still be considered in compliance with the substance abuse
treatment program requirements.
•
Identify the parameters for a job skills assessment for claimants who engage in the unlawful use of controlled substances and specify criteria that a claimant must satisfy in order to be considered in full compliance with the requirements of the job skills assessment.
The policy alternative is to do nothing.
If the department does not promulgate the proposed permanent and emergency rules, the department
’
s administrative rules will be inconsistent with statutory requirements.
Detailed explanation of statutory authority for the rule, including the statutory citation and language
“
[t
]
he department shall promulgate rules identifying a period of ineligibility that must elapse or a requalification requirement that must be satisfied, or both, in order for an employee who becomes ineligible for benefits as provided in this paragraph to again qualify for benefits and specifying how a claimant may overcome the presumption in this paragraph.
”
"
The department shall establish
a program to test claimants who apply for regular benefits under
this chapter for the presence of controlled substances in accordance
with this section
. . ."
"
The department shall promulgate rules
necessary to implement par.
(a).
"
“
[t]he department may adopt and enforce all rules which it finds necessary or suitable to carry out this chapter.
”
Estimate of amount of time that state employees will spend developing the rule and other resources necessary to develop the rule
The total amount of staff time is estimated to be approximately
1
,
500
hours.
List with description of all entities that may be affected by the proposed rule
The proposed permanent and emergency rules
may
affect
individuals who collect
unemployment insurance
benefits and either refuse to take, or fail, a drug test that is required by employers as a
conditional offer of
employment.
The proposed rules
may
also
affect
employers as unemployed individuals
may
collect
fewer unemployment insurance
benefits, resulting in fewer charges to employers
’
unemployment insurance
accounts and employers
possibly
paying
less
unemployment insurance
tax.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule
There are no existing or proposed federal regulations relating to pre-employment drug testing. There are federal recommendations
relating to
approved procedures for
the
collection and evaluation of drug tests.
Anticipated economic impact of implementing the rule (note if the rule is likely to have an economic impact on small businesses)
The proposed permanent and emergency rule
may
have a positive
effect
on businesses, including small businesses
.
This would occur if a claimant is found to have refused an offer of suitable work under the provisions of the rule, which would reduce the amount of unemployment benefits charged to an
employer's
unemployment insurance account.
Contact Person:
Janell Knutson, Director, UI Bureau of Legal Affairs, (608) 266-1639,
