Finally, there are details about the drug testing Governor Walker has been talking about for several months now.
The proposed testing includes three initiatives set forth in a newly created Wis. Stat. § 108.133 (see section 3155 of AB21):
- Allowing employers who conduct preemployment drug screenings to report failed tests to the Department.
- Requiring drug tests for claimants “for whom suitable work is only available in certain occupations that are federally approved for benefits eligibility testing.”
- Requiring drug testing for claimants “for whom suitable work is only available in an occupation that regularly conducts drug testing, as determined by the Department.”
Employer drug test reporting
This employer reporting of failed drug tests was in the 2011 budget. After complaints from the Advisory Council about being bypassed and problems noted by the Department about this employer reporting raising questions over employee privacy and administrative costs, this drug testing reporting was repealed by 2011 Wis. Act 198 before it was ever implemented.
This current proposal is an obvious effort to revive this employer reporting of drug tests. Job applicants here who have test results reported or who refuse a drug test are treated as someone who has refused an offer of suitable work pursuant to Wis. Stat. § 108.04(8). This disqualification means that the person cannot collect benefits until he or she has earned 6x his or her weekly benefit rate.
Proposed Wis. Stat. § 108.133(4)(a) sets forth this reporting option and sub-section (b) states: “The department shall promulgate rules necessary to implement par. (a).” Because not all drug tests are equivalent in accuracy, scope, and process, even rules for confidential handling of drug test results or refusals to take tests only scratch the surface of what kind of rules are needed here. Documentation about the kind of tests being done, the chain of custody for the samples, and options for retests of samples, for instance, will be needed with each test report.
Furthermore, because these test results can come from any employer rather than just a prior employer of an employee (as when an employer discharges an employee for a failed drug test), employers simply screening applicants will be dragged into unemployment hearings for their job applicants who want to contest their disqualification. Most employers do not feel a great need to get involved in such situations.
One final note here about job applicants refusing a drug test. Under this proposal, a job applicant who refuses a drug test is treated the same as an applicant who fails a test. On more than a few occasions, applicants refuse a drug test not because he or she fears a positive test result but because they are no longer interested in the job. For them, a no-show for the test is a better way of turning down the offer rather than telling the employer in person that they do not want the job. Certainly, someone currently collecting unemployment benefits does not have this option, as they must accept all reasonable/bona fide job offers. But, someone who is not collecting unemployment benefits will, under this proposal have to take the test and then turn down the job they are no longer interested in. If they decline the drug test, they risk having their unemployment benefits suspended in the future because of this past refusal to take a test (and, even though this reporting prohibition will only apply to current claimants, there is nothing yet to indicate when an employer report of a drug test will matter or be declared stale for this rule). As a result, employers will be paying for additional tests because applicants will feel pressured to take the tests regardless of actual interest in the work at stake.
Testing in federally approved drug testing occupations
The April 2014 minutes of the Advisory Council described how federal law allows for this drug testing:
The Middle Class Tax Relief Act of 2012 granted states the option to pass laws to enable their UI agencies to require drug testing on UI claimants. In order to be able to require drug testing, a claimant must have been terminated from their most recent employer due to the use of controlled substances, or if the claimant’s only suitable work involves employment that regularly performs drug testing. DOL is currently promulgating rules that will identify specific industries that regularly require drug testing. Wisconsin law does not currently require drug testing of UI claimants.
This part of the proposal seeks to implement this federal law by requiring those in fields where drug testing occurs because of federal drug testing requirements (e.g., commercial drivers or those in heavy manufacturing) to pass an additional drug test when applying for unemployment benefits.
I am unaware of the status of the federal regulations needed to implement this provision. Even with those regulations in place, the Department will need to undertake the following:
(2) DRUG TESTING PROGRAM. 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 and shall, under the program, do all of the following:
(a) Promulgate rules to establish the program. The department shall do all of the following in the rules promulgated under this paragraph:
1. Establish a process to test claimants for the presence of controlled substances. In establishing the process, the department shall adhere to any applicable federal requirements regarding drug testing.
2. Identify the parameters for a substance abuse treatment program for claimants who misuse controlled substances and specify criteria that a claimant must satisfy in order to be considered in full compliance with requirements of the substance abuse treatment program.
3. Create a screening process for determining whether a claimant should be required to submit to a test for the presence of controlled substances.
4. Identify the parameters for a job skills assessment for claimants who misuse 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.
(am) Promulgate rules identifying occupations for which drug testing is regularly conducted in this state.
(b) When a claimant applies for regular benefits under this chapter, do all of the following:
1. Determine whether the claimant is an individual for whom suitable work is only available in an occupation that regularly conducts drug testing.
2. Determine whether the claimant is an individual for whom suitable work is only available in an occupation identified in the rules promulgated under par. (am).
3. If the claimant is determined by the department under subd. 1. to be an individual for whom suitable work is only available in an occupation that regularly conducts drug testing, conduct a screening on the claimant.
4. If the claimant is determined by the department under subd. 2. to be an individual for whom suitable work is only available in an occupation identified in the rules promulgated under par. (am), conduct a screening on the claimant if a screening is not already required under subd. 3.
5. If a screening conducted as required under subd. 3. or 4. indicates that the claimant should be required to submit to a test for the presence of controlled substances, require that the claimant submit to such a test.
(c) Create and provide a substance abuse treatment program in accordance with the rules promulgated under par. (a)2.
(d) Create and conduct job skills assessments in accordance with the rules promulgated under par. (a)4.
See proposed Wis. Stat. § 108.133(2). As is obvious, a lot of work is needed to implement this testing requirement. Those who test positive or refuse the drug test face a 52 week prohibition on unemployment benefits unless they enroll “in [a] substance abuse treatment program and [undergo] a job skills assessment.” See proposed Wis. Stat. § 108.133(3)(d).
Gov. Walker has earmarked $500,000 in the 2017 fiscal year budget
$1 million in his budget for each of the next two fiscal years for this drug testing and treatment. Staff time and effort on creating and implementing these requirements are not funded separately but come out of general DWD funds. This $500,000 $2 million is a made-up number, and there is no evidence available about what the actual costs of the drug testing and treatment will be will be. Given all the cuts in this budget, these monies would certainly be better spent elsewhere (Wisconsin public radio and television, for instance, could use these funds) than in implementing a drug testing requirement that will very likely cost more than in any unemployment benefits it stops from being paid out.
UPDATE: I misread budget figures and have corrected the proposed budget amount based on the LFB analysis.
Drug testing in other occupations
Here, the proposal goes further than in seeking to implement current federal drug testing legislation. Governor Walker is asking the Department to identify on its own occupations for which drug testing is regularly conducted in the state — see (2)(am) above — and then to expand the drug testing of claimants to all of these fields as well as the federally mandated occupations. This expansion, however, is put on hold (as well as any part of this drug testing proposal) if the Department “determines that waiver of the provision is necessary to permit continued certification of this chapter for grants to this state under Title III of the federal Social Security Act or for maximum credit allowances to employers under the federal Unemployment Tax Act.” See proposed Wis. Stat. § 108.133(5)(d). In other words, federal approval is needed before implementation of this expanded testing, and no testing may take place until federal authorization is obtained. As a result, there is almost nothing that can be determined about this expansion from this proposal. The substance is lacking.