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.

Social media protections

Thanks to a reminder from the Wisconsin State Law Library, here is some information about social media protections available in Wisconsin since 10 April 2014 with the passage of SB223 as 2013 Wisconsin Act 208. A legislative council memorandum has the full description of this law.

Recall that around 2011 and 2012, media stories appeared about employers demanding job applicants to disclose passwords to Facebook accounts. While such demands are legal folly, at the time there was nothing explicitly illegal about them. This 2013 act explicitly makes such demands to reveal passwords illegal.

Under this law, an employer, educational institution, or landlord may not ask for or demand an employee, student, tenant, or applicant to reveal personal information associated with an Internet account of some kind, like the passwords or lock codes for a personal e-mail address, a personal cell or smart phone, or a personal Facebook account. Likewise, an employer, educational institutional, or landlord cannot discipline, discharge, expel, or refuse to rent to an employee, student, tenant, or applicant for refusing to disclose such information or who opposes such disclosure.

Employers and educational institutions can request and even demand access to Internet accounts connected to that employer or educational institution, however. Likewise, restrictions on which web sites can be visited and the monitoring of Internet access are available to employers and educational institutions on the networks and equipment they provide. And certainly, information in the public domain — i.e., available without use of a password or pass code associated with the account — is available to the employer, land lord, or educational institution without consequence to them.

Finally, if a personal Internet account or device could reasonably be believed to have information relating to an alleged unauthorized transfer of proprietary or confidential information, company financial data, other employment-related misconduct, any violation of the law, or any violation of the employer’s work rules as specified in an employee handbook, then the employer may, in the course of an investigation into these allegations, require an employee to grant access or allow observation of a personal Internet account or device. Even in this case, however, the employer may not demand the employee reveal the password or lock code associated with the personal Internet account or device.

If an employee, student, tenant, or applicant believes that a violation of this law has occurred, he or she can file a discrimination complaint with the Equal Rights Division of the Department of Workforce Development. In the employment context, the employee or job applicant would be entitled to back pay and reinstatement. In addition, criminal forfeiture penalties of up to $1,000 may also be charged pursuant to Wis. Stat. § 995.55 for violations of this act.

So, Wisconsin joins other states in making demands for Facebook passwords illegal.