UPDATE (9 Nov. 2015): The new drug testing regulations actually only apply to Temporary Assistance for Needy Families (TANF) programs. Food stamp recipients may be covered at some later date if Wisconsin wins a law suit against the federal government to allow drug testing in food stamp programs.
Emergency regulations that were only recently proposed on October 19th have this week been quickly approved by the governor (the comment period closed this week on Monday, November 2nd) and will take effect this upcoming Monday, November 9th.
While this drug testing has nothing to do with unemployment benefits (unemployment testing cannot even be considered for implementation until federal authorities issue final regulations and then state regulations for the testing pass federal review), this testing of
food stamp Temporary Assistance for Needy Families (TANF) recipients includes some wrinkles — or rather a lack of specificity — that everyone should take note of.
In particular, the criteria and the nature of the drug testing that will be used is essentially “to be determined.”
NATURE OF TESTING REQUIRED. Testing shall consist of laboratory analysis of a specimen collected from an individual. The department shall provide to each administering agency a list of all controlled substances or metabolites of controlled substances that must be included in the test and cutoff levels for the test and any confirmation test that may be used. The department may add or delete controlled substances or metabolites that must be included in the laboratory test to reflect changes in pre-employment drug testing practices of Wisconsin employers. Any positive test shall be confirmed through a confirmation test from the original specimen collected from the individual. Methods of analysis for the confirmation test may include quantification by gas chromatograph-mass spectrometer, liquid chromatography-mass spectrometry, tandem mass-spectrometry, or another analytical method approved by a medical review officer for the drug testing vendor.
ADM DCF 105.05(2) [pp.8-9 of the emergency regulation].
What information about the drug testing standards at issue here indicate that open-ended criteria will be used to determine both what kinds of tests will be used as well as the criteria at issue in those tests. Rather than the urine testing that is standard in most workplace drug testing, the Department of Children and Families could well order up saliva, sweat, blood, or even hair testing (see, for instance Brandt v. Scot Forge Co., UI Hearing No. 09006150MD (18 July 2013) for a discussion of some of the problems with hair testing). At present, the federal agency responsible for drug testing has still only approved of urine or blood tests as legitimate tests for use of illegal drugs. In addition, this new regulation allows the Department of Children and Families to set cutoff levels for revealing drug use that may differ or even conflict with federal requirements for establishing a positive test result. It is the “drug testing practices of Wisconsin employers” rather than established scientific standards that will govern what cutoff levels will be used for a positive test result.
Finally, these regulations are completely silent about inspection and certification requirements for the drug testing laboratories themselves. The federal standards for drug testing and certification are thorough and fair. Other standards for drug testing laboratories, however, can leave out quite a bit. And so, any lab that is not federally certified might not have much validity at all to its tests. But, without a thorough understanding of the science and laboratory techniques at issue with that test and the lab conducting the test, a challenge about a fake-positive will be difficult if not impossible to mount.