Drug testing is making a comeback

Brand new proposed regulations are now available. Here is the initial reaction from NELP:

Washington, D.C. — Following is a statement from Christine Owens, Executive Director, National Employment Law Project:

“Today, the Trump Department of Labor (DOL) released a proposed rule giving states fairly broad authority to conduct mandatory drug testing of unemployment benefit claimants and recipients. The proposal not only suffers from a number of fatal legal flaws, but more to the point, drug testing of UI applicants–when there is no basis for suspicion–is a gross insult to unemployed Americans everywhere, and a costly solution in search of a non-existent problem. Clearly, this proposal is designed to stigmatize use of an important layer of our social safety net.

“As part of a bipartisan compromise to pass the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRA), Congress agreed to allow states to conduct drug testing of unemployment insurance claimants under two exceedingly narrow circumstances: if a worker was discharged for use of controlled substances, or when a worker is only available for work in professions that regularly conduct drug testing. The Obama Department of Labor crafted a regulation that closely adhered to the statutory language, but upset with the bargain it struck, Congress then used the Congressional Review Act to repeal this regulation, arguing that in spite of the very narrow language in the MCTRA, states should be allowed to drug test in broader circumstances.

“State-mandated drug testing may well violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The mere act of applying for a government program does not provide grounds to reasonably suspect a person of drug use. Indeed, when states such as Michigan and Florida tried to impose mandatory suspicion-less drug testing on all TANF applicants and recipients, federal courts intervened to stop them, finding such testing unconstitutional.

“In addition, when Congress passed the MCTRA, it not only articulated very narrow circumstances under which drug testing could be conducted, but it delegated to DOL the authority to define which occupations were covered under the law. The Trump DOL has instead essentially granted states broad authority to determine which occupations regularly conduct drug testing beyond that which is required by law, a delegation of authority not authorized by the MCTRA.

“As the proposed regulation acknowledges, the expense of such drug testing is considerable, while states’ funding to run their UI programs is at a historic low. Expanding drug testing would drain critical resources from programs that are already strapped for funds. In 2015, for example, states spent more than $850,000 on testing TANF applicants, and 321 people tested positive–a cost of approximately $2,650 per positive test. Indeed, all testing regimes yield positive results at rates substantially below the Centers for Disease Control’s estimate of 8.5 percent drug-use rate in the general population.

“Finally, this misguided proposal represents a not-so-subtle attack on the character of unemployed Americans. This intrusion into the privacy of Americans who just happen to be unlucky enough to lose their job seems rooted in a blanket assumption that unemployed workers are to blame. Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring.

“Unemployment insurance is an important economic tool to help workers, their families, and their communities deal with involuntary job loss. And NELP will lead the fight to stop this expensive, illegal, ill-conceived effort to erode this safety net.”

As noted in this newly proposed rule, Wisconsin, Texas, and Mississippi are the only states that have passed drug-testing laws for unemployment claimants that seek to implement drug-testing of some kind. The proposed rule also “claims” that drug testing will have minimal costs. Really?

If this new proposal survives court challenges, expect Wisconsin to expand drug-testing for any job sector for which the state thinks drug-testing is important in some way. I fully expect Gov. Walker to expand testing to include school employees whenever they apply for unemployment benefits. Indeed, I would not be surprised if Gov. Walker determined that every unemployment claimant should be drug-tested. After all, such tests would simply be one more obstacle claimants would have to jump through as part of the initial claim-filing process.

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Disaster unemployment assistance available here in Wisconsin

Wisconsin now has disaster unemployment assistance available to folks who have lost work because of the recent flooding and rains. For residents of Crawford, Dane, Juneau, La Crosse, Monroe, Richland, Sauk, and Vernon counties, the deadline for applying for such assistance is 23 November 2018. And, such assistance is available to self-employed folks as well.

DUA in Wisconsin

Be careful, however. The Department of Workforce Development will charge you with criminal fraud for any claim-filing mistakes you make, no matter how unintentional those mistakes might be.

As I have indicated repeatedly (here, here, and here, for instance), filing an unemployment claim today is a BIG risk because of the Department’s zealousness for charging fraud when making non-intentional claim-filing mistakes.

The fact that the Department features three publications (and only these three) that generally (the claimant’s handbook) or only warn against claimant fraud (DUA rights and responsibilities and Notice to all DUA applicants) reinforces this warning. These documents represent the Department’s way of explaining to you that the Department will hold you strictly liable for your claim-filing mistakes.

In other words, do NOT file a claim for unemployment benefits unless you absolutely have to. And even then, double-check everything you write down and take notes of everything you do and of every interaction you have with the Department.

Federal drug testing is trying for a comeback

The current administration is trying to bring back drug testing. As of Oct. 24th, the Office of Management and Budget has approved new, proposed regulations:

new drug testing regs

As indicated here, these proposed regulations are strangely NOT economically significant, do NOT affect small entities, and have NO federalism impacts (i.e., state sovereignty remains intact). The whole point of drug testing the unemployed was to reduce the “terrible” effects of drug use on workplace productivity and safety, that this federal drug testing requirement would empower small businesses to take up this testing and thereby get a drug-free workforce at much lower costs, and that the regulation would allow states the “freedom” to implement specific drug-testing requirements. Essentially, this conclusion of NO effect on these issues is proclaiming that drug-testing the unemployed is of no importance, financially or otherwise.

The new, proposed regulations should appear in the Federal Register in the next few weeks. Only then will we know what the substance of these new requirements are.

As I noted previously here and here, there are serious problems with any new drug testing regulations given how Congress nixed the prior regulations via the Congressional Review Act. Under that law, new regulations are verboten if they are in “substantially the same form” as the disapproved regulations unless they are specifically authorized by a subsequent federal law.

In other words, these new, proposed regulations MUST be substantially different from the prior drug-testing regulations, as Congress has passed no law authorizing new regulations.

Public hearing for unemployment

Here are the details:

2018 Public Hearing

The Unemployment Insurance Advisory Council is interested in hearing your comments on Wisconsin’s Unemployment Insurance program and suggestions for changing the law and improving the program.

The Council represents employee and employer interests and recommends changes to the unemployment law to the Legislature.

Participate in the 2018 public hearing, conducted simultaneously at seven locations throughout the state using video conference technology.

Hearing Date/Time & Locations

Date: Thursday, November 15, 2018
Time: 3:00 p.m. – 6:00 p.m.
Location: Attend the public hearing video conference from one of the following locations:
Madison:
UW-Extension
The Pyle Center
702 Langdon Street
Madison, WI
Eau Claire:
UW-Eau Claire
Centennial Hall
Room 1804
1698 Park Avenue
Eau Claire, WI
La Crosse:
UW-La Crosse
Wing Technology Center
Room 102
1705 State Street
La Crosse, WI
Superior:
WITC – Superior Campus
Room 101D
600 North 21st Street
Superior, WI
Green Bay:
UW-Green Bay
Instructional Services
Room 1034
2420 Nicolet Drive
Green Bay, WI
Milwaukee:
UW-Milwaukee
Kenwood Interdisciplinary Research Complex
Room 2175
3135 N. Maryland Avenue
Milwaukee, WI
Wausau:
Northcentral Technical College
Center for Business and Industry
Room 127
1000 West Campus Drive
Wausau, WI

Submit Comments

The public is invited to provide comments. If you cannot attend the public hearing, you may submit your comments no later than November 16, 2018:

  • Email: UILawChange@dwd.wisconsin.gov
  • Written comments may be mailed to:

Janell Knutson, Chair
Unemployment Insurance Advisory Council
P.O. Box 8942
Madison, WI 53708

If you have any questions, contact Robin Gallagher at 608-267-1405 or visit the Unemployment Insurance Advisory Council website: https://dwd.wisconsin.gov/uibola/uiac.

Bad drug testing advice from DWD

The Department of Workforce Development has another newsletter for employers (here is a link to a PDF version). Understandable, the Department lets employers know about the deep decline in unemployment taxes for employers the last few years, pushes its new on-line portal for employers, publicizes the upcoming public hearing, and other employer-centric issues.

Surprisingly, the Department also states:

Pre-Employment Drug Testing Program Helps Strengthen Wisconsin’s Workforce

With a record low unemployment rate, the prevalence of substance abuse is a growing problem for employers who are already struggling to find qualified workers. As part of DWD’s commitment to ensuring no talent is left on the sidelines, the Department’s Pre-Employment Drug Testing Program is a way employers can help grow Wisconsin’s pool of work-ready job seekers while fostering a drug free workplace within their business.

Provisions included in the UIAC agreed-upon bill, effective April 1, 2018 provide that an employer that submits the results of a positive test or notifies DWD of an individual’s refusal to take a pre-employment drug test is immune from state civil liability for its acts or omissions with respect to the submission of the reported information (Wis. Stat. § 108.133(4)(c)). Go to https://dwd.wisconsin.gov/ui/pre_employment_drug_testing to find additional information, forms, and resources on how to participate in the program.

This advice is plain silly and borderline malpractice. Immunity from civil liability in state law is basically meaningless in the area of medical privacy law. Almost any and every law suit a person might file will be based on federal laws that protect an individual’s medical privacy. Obviously, federal law against disability discrimination may apply in these situations. While HIPAA does not cover employers, it does cover health care providers and all of the entities that contract with those providers, including drug-testing labs. Moreover, a self-insured employer who has an ERISA plan (which pretty much covers all large employers in the state) will mean that employer liability can probably ONLY occur through an action based on federal law. Finally, an employer who fails to follow federal drug-testing requirements will most-likely open themselves up to liability and even bars against future contracts for federal work.

In other words, state law has limited relevance here, and so an immunization from civil liability in state law simply does not mean all that much. Any employer that thinks otherwise is being misled. In actuality, no matter what might be said in state law, an employer essentially has NO immunity from a law suit alleging an invasion of medical privacy at the federal level.

NOTE: drug tests of employees or potential hires are usually NOT an invasion of medical privacy because of federal laws that allow such testing or waivers that the employees sign as part of their employment contract. The problem with reporting failed drug tests of applicants, however, is that neither probably applies. After all, an applicant is not yet an employee and has received nothing of consequence accept a contingent offer of employment.

Improved on-line UI access for employers

The Department of Workforce Development has announced as of 27 Sept. 2018 improved on-line access for employers to their unemployment accounts.

Department of Workforce Development Announces Upgraded Unemployment Insurance Employer Online Services

MADISON (9/27/18) – Today, the Department of Workforce Development announced enhancements that will make it easier for employers to interact and correspond with the Department’s Unemployment Insurance program.

The first improvement is a streamlined and an easy to use UI Employer Online Services and SIDES E-Response sign-on. The second improvement permits employers to view benefit determinations and to file benefit appeals electronically.

“Wisconsin was the first state in the nation to offer unemployment insurance benefits,” said Secretary Ray Allen. “Now, we are leading again as the first state to provide an electronic method for employers to appeal benefit cases through the SIDES Exchange.” Allen noted that unemployed workers already have the ability to appeal such cases electronically.

Unemployment Insurance (UI) SIDES E-Response is a web-based system that allows electronic transmission of information requests from UI agencies to employers and/or Third-Party Administrators (TPAs), as well as transmission of replies containing the requested information back to the UI agencies.

Prior to the enhancements, employers had to use different login credentials for each response sent through SIDES. Employers are now able to use their UI Employer Online Services credentials to respond to inquiries through SIDES. This enhancement makes the system more user-friendly, saving employers time and money.

Newly Upgraded UI Employer Online Services include:

  • Single sign-on for UI Employer Online Services and SIDES E-Response – saves time, reduces complexity
  • Employer appeals can be filed online – view and print benefit determinations, file appeals, amend appeal responses and send attachments

Additional employer benefits include:

  • Safe and secure online services are available to employers for free
  • Eliminates delays and save money on employer paper mailings
  • Reduces improper payments and employer charging, keeping tax rates as low as possible

To sign-up, log-in, or learn more, visit https://dwd.wisconsin.gov/ui/sides

Essentially, these changes expand what is currently available to employer representatives via SIDES to allow all employers to have the same kind of access to their accounts. For small employers who do not have an agent handling their unemployment accounts, this added access is an obvious improvement.

The changes, however, will not be obvious without some exploring of the employer accounts by the employer. So, employers: log into your accounts at the link in the press release above and do some exploring.

Workforce statistics in Wisconsin, Minnesota, and Colorado

Jake again has another excellent report on employment and unemployment numbers.

A recent report comparing Minnesota and Wisconsin leads Jake to point out how Minnesota job growth has outpaced Wisconsin, and that Wisconsin has trailed and even slowed when compared to both national averages and Minnesota’s employment growth. Yet, the mystery is that Wisconsin and Minnesota have similar if not identical unemployment rates. The North Star report concludes about Wisconsin:

To a significant extent, Wisconsin’s low unemployment rate is driven by a weak job market that discourages workers from entering or staying in the labor force.

I disagree with this conclusion. Folks in Wisconsin that remain here are staying in the workforce. They just are not collecting unemployment benefits. Rather, as I previously described, they are skipping unemployment completely and using low-wage, service work as a substitute for unemployment benefits. Hence, the unemployment rate is low in this state because it either forces workers to find new jobs immediately whatever the pay being offered or it discourages workers from staying in Wisconsin when one job ends and they have options for other jobs in other states.

In this regard, the population statistics Jake presents about Minnesota, Wisconsin, and Colorado are eye-popping.

At the start of 2011, when Walker and Dem Governors Mark Dayton (Minnesota) and John Hickenlooper (Colorado) took over their respective states, Wisconsin had more people living and working in their state – and a lot more when compared to Colorado (whose unemployment rate was higher than Wisconsin’s at the time, at 8.8%).

Household employment, Jan 2011
Wis. 2,831,200
Minn 2,737,400
Col. 2,486,600

Population, 2011
Wis. 5,705,812
Minn 5,345,967
Col. 5,116,411

Move ahead to today, and that gap has closed. To the point that Colorado may pass Wisconsin by 2020 in both stats if the trend continues.

Household employment, Aug 2018
Wis. 3,083,200 (+252,000)
Minn 3,015,360 (+277,960)
Col. 3,000,250 (+515,650)

Population 2017
Wis. 5,795,483 (+89,671)
Minn 5,576,606 (+230,639)
Col. 5,607,154 (+490,743)

And the growth in the Labor Force over the same period also reflects these trends.

Change in Labor Force Jan 2011- Aug 2018
Wis. +99,540
Minn +163,715
Col. +364,600

These numbers show that household employment in Wisconsin was nearly 3X population growth, whereas similar ratios for Minnesota and Colorado are approximately 1:1. The story in Wisconsin, then, is that folks are not staying around (the anemic population growth), and those that do are forced to take whatever work is available to them rather than trying to find the right job after collecting unemployment benefits for a few weeks (the low unemployment rate).

Minnesota and Colorado are creating modern economies that attempt to improve the lives of all. Hence, folks are flocking to those states, and job growth is matching their fast-paced population growth. Wisconsin, on the other hand, is well on its way to creating a backwater economy. Forward?