ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
EMERGENCY RULE
The Wisconsin department of workforce development hereby adopts the following emergency rule
to create
ch.
131
relating to pre-employment drug testing, substance abuse treatment program and job skills assessment.
Analysis Prepared by the Department of
Workforce Development
Statutes Interpreted
Statutes Interpreted: Ch.
108
, Stats.
Statutory Authority
Explanation of Statutory Authority
The Department of Workforce Development (DWD)
has specific and general authority to establish rules interpreting and clarifying provisions of ch.
108
, Stats., unemployment insurance and reserves, and general authority for promulgating rules with respect to ch.
108
, Stats., under s
s
.
108.14 (2)
and
(4)
, Stats.
2015 Wisconsin Act 55
(Act 55) created s.
108.133 (4)
, Stats.,
which requires
DWD
to promulgate rules to
create
procedures for an employing unit to voluntarily submit the positive results of a test for the presence of controlled substances conducted on an individual, or report that an individual declined to submit to a test, as a condition of
new
employment.
Act 55 also created s.
108.04 (8) (b)
,
Stats.,
which requires
DWD
to
promulgate rules
to create
a period of ineligibility or a requalification requirement, or both,
as it relates to
an individual
’
s
failure to accept suitable work
due to the positive result of a test
.
Act 55 created s.
108.133 (3) (d)
,
Stats.,
which permits an individual who fails a pre-employment drug test to remain eligible for benefits if the individual enrolls in and complies with the requirements of a drug treatment program and a skills assessment, which
DWD
must create under s
s
.
108.133
(2)
(a)
2.
and
4.
, Stats.,
Related Statute or Rules
Chapter
108
, Stats. – Unemployment Insurance and Reserves
Plain Language Analysis
This emergency 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:
T
here 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
decline
d
to submit to the test, or test
ed
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 t
est, 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 test
s
positive for the presence of controlled substances
with
o
ut 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 an
d
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 w
ho 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 emergency rule implements the requ
irements 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 an
d 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. In addition, the emergency rule identifies the process
by
which the
employing
unit can report the p
ositive result
s
of a test to DWD.
A
n 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 decline
d
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 the individual is receiving unemployment insurance benefits, there is a rebuttable
presumption
that the individual failed to accept suitable work. This emergency rule
provides the individual
may
overcome the presumption by
proving
certain facts by a preponderance of
the
evidence.
Under this emergency rule, an individual that fails a 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 emergency 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 emergency 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 t
he department on a weekly basis
of the individual
’
s compliance.
Provides that DWD will pay for
reasonable
costs associated with the substance abuse treatment
plan
requirements for each week 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
.
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 s
ubstances.
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
)
“
Co
ntrolled s
ubstances
”
has the meaning given under s.
108.133 (1) (a)
, Stats.
(
b
)
“
Positive result
s
”
m
eans 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
test
s
positive for the presence of controlled substances.
(c) The following information related to the
condition
al
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
.
T
he 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
) An
y
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)
I
ndividual
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 declin
ed
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.
T
he department shall provide information
regarding the documentation
submitted by an employing unit under sub. (2) or (
4
) to the individual.
(
6
) R
ebuttable 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
test
ed
positive for the presence of on
e 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 c
ircumstances 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), a
n 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 asses
sment as prescribed under
s.
DWD 131.
4
0
.
(
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)
A
n 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 provide
r
.
(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 t
reatment 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)
S
ubstance abuse treatment program
enrollment
.
Within 5 working days of being directed by the department, an
individual shall
contact a
n 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:
1. T
he substance abuse treatment provider
inform
s
the department on a weekly basis, in a manner prescribed by the department, of an individual
’
s compliance with the
substance abuse
treatment
plan
.
2. The individual certifies to the department on a weekly basis, in a manner prescribed by the department, that the individual is placed on a waitlist for
a
substance abuse treatment
program
and will comply with a substance abuse treatment plan when services
first
become available with a substance abuse treatment provider.
(b) An individual
that fails to comply with the
substance abuse
treatment plan under par. (a) 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.
(
7
)
Successful completion of substance abuse treatment program.
A substance abuse treatment provider shall notify the department
as directed,
when an individual successfully completes the requirements of the substance abuse treatment program.
(
8
)
Substance abuse treatment program costs.
(a) The department
shall pay
for
reasonable
costs
of
the
services provided by the substance abuse treatment provider as set forth in the
individual
’
s
substance abuse
treatment plan
for each week
the individual is eligible for benefits under ch.
108
, Stats.
(b) Notwithstanding par. (a), the department
shall pay
for
reasonable
costs
of the
services provided by the substance abuse treatment provider as set forth in the
substance abuse
treatment plan if the individual is determined ineligible for benefits under ch.
108
, Stats.,
solely
due to the
individual complying with the
requirements of the
individual
’
s
substance abuse
treatment plan.
DWD 131.
4
0. Jobs skills assessment.
(1)
An individual that tests positive for the presence of controlled substances under
this chapter
and that elects to enroll in and comply with a substance abuse treatment plan under this chapter
shall
complete a job skills assessment
as directed by the department
.
(2)
The
department
may
require an individual to participate in reemployment services under s.
DWD 127.07
in order to complete the job skills assessment
.
(3)
An individual that fails to participate in a job skills assessment under this section
as directed by the
department
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.
Section 2. Effective date.
This rule shall take effect upon publication and remains in effect for 150 days. The department may seek to extend this emergency rule as provided in s.
227.24
, Stats.
Dated this _____ day of ________________________, 2016.
STATE OF WISCONSIN
DEPARTMENT OF WORKFORCE
DEVELOPMENT
By: _____________________________________
Raymond Allen, Secretary
