Chapter DWD 131

Chapter DWD 131

PRE-EMPLOYMENT DRUG TESTING, SUBSTANCE ABUSE TREATMENT PROGRAM AND JOB SKILLS ASSESSMENT

DWD 131.001   Definitions.

DWD 131.10   Pre-employment testing for the unlawful use of controlled substances.

DWD 131.30   Substance abuse treatment program.

DWD 131.40   Jobs skills assessment.

DWD 131.001 DWD 131.001 Definitions.

DWD 131.001(1) (1) Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter.

DWD 131.001(2) (2) In this chapter:

DWD 131.001(2)(a) (a) “Controlled substances” has the meaning given under s. 108.133 (1) (ar), Stats.

DWD 131.001 Note Note: Section 108.133 (1) (ar), Stats., states “Notwithstanding s. 108.02 (9), “controlled substances” has the meaning given in 21 USC 802.”

DWD 131.001(2)(b) (b) “Positive test results” means a test outcome that confirms the unlawful use of one or more controlled substances and which is conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.

DWD 131.001(2)(d) (d) “Substance abuse treatment program” means the services offered by a substance abuse treatment provider, beginning with an assessment.

DWD 131.001(2)(e) (e) “Substance abuse treatment provider” means an individual or organization that is licensed by a government unit to administer substance abuse treatment services to individuals that use controlled substances.

DWD 131.001 History History: EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5-1-17; CR 18-033: am. (2) (intro.), (b) Register May 2019 No. 761, eff. 6-1-19; correction in (2) made under s. 13.92 (4) (b) 1., Stats., Register May 2019 No. 761; correction in (2) (a) made under s. 13.92 (40 (b) 7., Stats., Register March 2020 No. 771.

DWD 131.10 DWD 131.10 Pre-employment testing for the unlawful use of controlled substances.

DWD 131.10(1) (1) Positive test results; applicability. An employing unit may report to the department an individual’s positive test results if all of the following apply:

DWD 131.10(1)(a) (a) The test for the unlawful use of controlled substances was conducted as a condition of an offer of employment and the employing unit informed the individual, before testing, that positive test results may be submitted to the department.

DWD 131.10(1)(b) (b) The individual tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance.

DWD 131.10(1)(c) (c) The employing unit complies with all of the provisions of this chapter.

DWD 131.10(2) (2) Reporting positive test results to the department. To report positive test results to the department, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days after the date on which the employing unit received the positive test results:

DWD 131.10(2)(a) (a) The name, address, and telephone number of the employing unit, and, if applicable, the unemployment insurance account number of the employing unit.

DWD 131.10(2)(b) (b) The name, address, telephone number, and social security number of the individual that tests positive for the unlawful use of controlled substances.

DWD 131.10(2)(c) (c) The following information related to the conditional offer of employment that the employing unit offered to the individual:

DWD 131.10(2)(c)1. 1. Documentation of the conditional offer of employment.

DWD 131.10(2)(c)2. 2. The date on which the employing unit extended the conditional offer of employment to the individual.

DWD 131.10(2)(c)3. 3. The date on which employment would begin, the rate of pay offered to the individual, the number and arrangement of hours, and the kind of work that would be performed.

DWD 131.10(2)(c)4. 4. The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the unlawful use of controlled substances.

DWD 131.10(2)(d) (d) The date and manner in which the employing unit informed the individual that positive test results may be submitted to the department.

DWD 131.10(2)(e) (e) The following information related to the administration of the test and the positive test results:

DWD 131.10(2)(e)1. 1. The name, address, and telephone number of the laboratory that conducted the test.

DWD 131.10(2)(e)2. 2. The date on which the individual submitted to the test.

DWD 131.10(2)(e)3. 3. The controlled substances detected in the test.

DWD 131.10(2)(e)4. 4. A copy of the laboratory’s report.

DWD 131.10(2)(f) (f) The date on which the employing unit received the results of the test from the laboratory.

DWD 131.10(2)(g) (g) The date and manner in which the employing unit withdrew the conditional offer of employment after the employing unit received the positive test results.

DWD 131.10(2)(h) (h) Any additional information requested by the department.

DWD 131.10 Note Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53707 by telephone at [phone] or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.

DWD 131.10(3) (3) Individual declining to submit to a test for the unlawful use of controlled substances. An employing unit may notify the department that an individual declined to submit to a test for the unlawful use of controlled substances if all of the following apply:

DWD 131.10(3)(a) (a) The test for the unlawful use of controlled substances was required as a condition of an offer of employment and the employing unit informed the individual, before testing, that the employing unit may notify the department if the individual declines to submit to the test.

DWD 131.10(3)(b) (b) The employing unit complies with all of the provisions of this chapter.

DWD 131.10(4) (4) Notification to department of individual declining test. To notify the department that an individual declined to submit to a test for the unlawful use of controlled substances, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days after the date on which the individual declined to submit to the test:

DWD 131.10(4)(a) (a) The name, address, and telephone number of the employing unit, and if applicable, the unemployment insurance account number of the employing unit.

DWD 131.10(4)(b) (b) The name, address, telephone number, and social security number of the individual that declined to submit to a test for the unlawful use of controlled substances.

DWD 131.10(4)(c) (c) The following information related to the conditional offer of employment from the employing unit to the individual:

DWD 131.10(4)(c)1. 1. Documentation of the conditional offer of employment.

DWD 131.10(4)(c)2. 2. The date on which the employing unit extended the conditional offer of employment to the individual.

DWD 131.10(4)(c)3. 3. The date on which employment would begin, the individual’s pay rate, the number and arrangement of hours, and the kind of work that would be performed.

DWD 131.10(4)(c)4. 4. The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the unlawful use of controlled substances.

DWD 131.10(4)(d) (d) The date and manner in which the employing unit informed the individual that the employing unit may notify the department if the individual declined to submit to a test for the unlawful use of controlled substances.

DWD 131.10(4)(e) (e) The following information related to the individual declining to submit to a test for the unlawful use of controlled substances:

DWD 131.10(4)(e)1. 1. The date on which the individual declined to submit to a test.

DWD 131.10(4)(e)2. 2. Documentation that the individual declined to submit to the test.

DWD 131.10(4)(e)3. 3. The date on which the employing unit received notification that the individual declined to submit to the test.

DWD 131.10(4)(f) (f) The date and manner the employing unit withdrew the conditional offer of employment after the employing unit received notice that the individual declined to submit to a test for the unlawful use of controlled substances.

DWD 131.10(4)(g) (g) Any additional information requested by the department.

DWD 131.10 Note Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53707, by telephone at [phone] or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.

DWD 131.10(5) (5) Department determination of an individual receiving benefits.

DWD 131.10(5)(a) (a) The department shall determine, after receiving the information submitted by an employing unit under sub. (2) or (4), whether the individual is receiving benefits under ch. 108, Stats.

DWD 131.10(5)(b) (b) If the department determines the individual is receiving benefits under par. (a), the department shall use the information reported under sub. (2) or (4) to determine eligibility under s. 108.04 (8) (b), Stats. The department shall provide information regarding the documentation submitted by an employing unit under sub. (2) or (4) to the individual.

DWD 131.10(6) (6) Rebuttable presumption for failure to accept suitable work.

DWD 131.10(6)(a) (a) If the department determines an individual is receiving benefits under sub. (5) (a), the department shall provide the individual an opportunity to overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats.

DWD 131.10(6)(b) (b) An individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., if the individual tested positive for the unlawful use of one or more controlled substances, and the individual establishes by a preponderance of the evidence, any of the following:

DWD 131.10(6)(b)1. 1. The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the unlawful use of controlled substances.

DWD 131.10(6)(b)2. 2. The employing unit withdrew the offer of employment before the employing unit received the positive test results.

DWD 131.10(6)(b)3. 3. The individual held a valid prescription at the time of the test for each controlled substance detected in the test.

DWD 131.10(6)(b)4. 4. The test for the unlawful use of controlled substances was not conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.

DWD 131.10(6)(b)5. 5. The requirements under s. 108.04 (9), Stats., apply to the work offered.

DWD 131.10(6)(b)6. 6. Any circumstances which the department determines are beyond the individual’s control.

DWD 131.10(6)(c) (c) The individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., by declining to submit to a test for the unlawful use of controlled substances if the individual establishes by a preponderance of the evidence, any of the following:

DWD 131.10(6)(c)1. 1. The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the unlawful use of controlled substances.

DWD 131.10(6)(c)2. 2. The individual was unable to complete a test for the unlawful use of controlled substances due to medical reasons.