Unemployment drug testing in 2017

Where other states are debating legalization of marijuana, in Wisconsin drug-testing has been the hot topic.

NOTE: Drug-testing is by-far the topic that attracts the most public attention. On this blog, traffic jumps 4X on average whenever I post something about drugs. For whatever reason, drugs are perpetually generating interest and concern.

The 2015 budget included various drug-testing efforts. As I originally described them, this testing can be divided into three parts:

1. Allowing employers who conduct pre-employment drug screenings of job applicants to report failed tests to the Department.
2. Requiring drug tests for claimants “for whom suitable work is only available in certain occupations that are federally approved for benefits eligibility testing.”
3. 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.”

The drug testing will be described below for item 1 and then items 2 and 3 in separate sections.

Item 1: Employers’ voluntary reporting

The Department enacted emergency regulations and additional emergency regulations and then permanent regulations for the testing in Item 1. As of 28 April 2017, the Department even has a website page describing this voluntary reporting with links for the reporting forms.

These rules create DWD 131 for governing this voluntary reporting by employers. In general, these regulations create two kinds of potential disqualification for job applicants: when they test positive or when they refuse a drug test. These potential disqualifications, however, only apply when:

• the job applicant is receiving unemployment benefits at the time,
• the employer voluntarily submits the required information to the Department,
• the employer participates in an unemployment hearing should the job applicant challenge the potential disqualification,
• and, if the job applicant loses the hearing, he or she declines to participate in government-funded drug treatment/counseling.

As I explained in May 2015:

during the debate over this drug testing the Democratic members of the Joint Finance Committee were the ones pointing out the wasteful, big government spending at issue with this drug testing. The estimates were low-balled, these Democrats exclaimed, the testing and treatment will accomplish nothing, and government bureaucracy will only make finding work that much harder. WisPolitics budget blog smartly featured the Republicans’ response to these criticisms. Rep. Dale Kooyenga, R-Brookfield, explained: “There’s a tremendous opportunity through good public policy to make a community better.” In 1975, Ted Kennedy could not have said it better, and that is what makes this drug testing one of the strangest pieces of legislation I have ever seen.

Despite the Department’s push for this voluntary drug-testing by employers, the Department has yet to report any employer actually submitting a failed drug test or an employee refusing a drug test. It appears that this new reporting option is still a big zero, or much ado over nothing.

Items 2 and 3: Required drug-testing for federally-approved occupations and state-determined occupations

Rather than voluntary reports by employers, the drug testing for items 2 and 3 would be done by the Department as part of certain claimants’ initial claim for unemployment benefits. The questions were which claimant occupations would be subject to such drug testing, how would a claimant’s occupation be determined, and what kind of drug testing protocols would be required.

Recall that federal law is what made this drug testing possible. So, federal regulations were first needed before a state could go forward with its own testing efforts, and final regulations did not emerge from the US Dep’t of Labor until 1 August 2016. These final rules limited the occupations for drug testing to those occupations required under state or federal law for drug testing (e.g., airline pilots and inter-state truck drivers) and indicated that state law about a claimant’s occupation and suitable work would govern for determining whether that claimant was in an occupation for which testing would be required. Hence, this rule limited drug testing to occupations required under state or federal law for such testing and did not allow state agencies on their own initiative to designate occupations for drug testing.

That limitation was not to the liking of Republicans in Congress, and so they passed a joint resolution overturning these new rules, which the current President then signed into law. So, there are now no rules at present, and drug testing by the Department itself is back to square one. Indeed, drug testing for unemployment claimants when they file their initial claims is now not likely at all this year.

When new federal rules do emerge, expect the reach of drug testing to be expansive and discretionary. But, for now the only drug-testing at issue in unemployment matters are employers’ tests of job applicants that are voluntarily turned over to the Department.

NOTE: New federal rules, moreover, may not be forthcoming at all. The mechanism used to repeal the August 2016 rules — the Congressional Review Act — provides that a new rule may not be issued in “substantially the same form” as the disapproved rule unless it is specifically authorized by a subsequent federal law. See The Congressional Review Act: Frequently Asked Questions for all the details. So, without a new law by Congress, new rules for expansive drug testing are unlikely.

This Narcotics Anonymous group brought to you by DWD

Yesterday, the Joint Finance Committee approved of drug testing the unemployed in the proposed budget.

The final testing requirements are similar to AB192 minus the requirement to survey employers about their drug testing. Accordingly, the estimate by the Legislative Finance Bureau to a great extent applies to this similar testing requirement. I went through AB192 costs here. In short, initial costs for setting up the drug testing will be just over $1.6 million, and the annual costs for the drug testing will, it is estimated, be $1.06 million.

The drug testing in the budget bill was previously described here. For the Joint Finance Committee, the Fiscal Bureau added additional analysis for the drug testing that is now in the budget bill. This memo revises the annual cost estimates from AB192 — now only $973,200 — and notes numerous “issues” with this testing. For instance, other drug testing programs have only found extremely low numbers of positive test results, this testing could easily be more expensive than estimated, the testing requirement could — if the full scope of the requirement is allowed by federal authorities and applied by DWD — cover up to 85% of all claimants in Wisconsin, almost 5% of Wisconsin’s workers would most likely be immediately covered by this drug testing requirement, and estimated treatment costs of $2,700 per claimant are really nothing more than guesswork and that actual costs for treatment are unknown.

The ability of employers to volunteer test results of job applicants raises a host of additional problems as well, from whether employers will need to change their testing procedures to DWD-approved testing, potential violations of employee privacy, and creating a host of complications regarding departmental record-keeping requirements. Indeed, the Finance Bureau specifically notes that the Advisory Council previously asked the legislature to repeal a similar testing provision that was passed by the legislature in 2011. And, the legislature did so. None of the issues with that legislation have been addressed in this current drug testing requirement.

So, there are many reasons to think this drug testing requirement is not ready for prime time. But, all of these problems are not what is most remarkable about this legislation. What is most strange here is who is advocating for this testing and what supporters and critics are saying.

As the title for this post indicates, this testing requirement is essentially making the Department of Workforce Development into a sponsor and supporter of drug treatment programs for hundreds of Wisconsin workers. Prior to my arrival in Wisconsin, for some time I lived in Massachusetts, the home state of that lion of the senate, that bastion of liberalism, Ted Kennedy. Senator Kennedy certainly changed his positions on issues over time, but the Kennedy of the 1970s was the symbol of big government programs intended to cure societal ills. In 2015 — forty years later — you would think that the Republicans of today would be as far apart from 1970s big government liberalism as possible, especially when many push President Reagan’s rebuke of that liberalism as a little bit of political heaven on earth.

Yet, during the debate over this drug testing the Democratic members of the Joint Finance Committee were the ones pointing out the wasteful, big government spending at issue with this drug testing. The estimates were low-balled, these Democrats exclaimed, the testing and treatment will accomplish nothing, and government bureaucracy will only make finding work that much harder. WisPolitics budget blog smartly featured the Republicans’ response to these criticisms. Rep. Dale Kooyenga, R-Brookfield, explained: “There’s a tremendous opportunity through good public policy to make a community better.” In 1975, Ted Kennedy could not have said it better, and that is what makes this drug testing one of the strangest pieces of legislation I have ever seen.