Section DWD 131.10 - Pre-employment testing for the unlawful use of controlled substances(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: (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.(b) The individual tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance.(c) The employing unit complies with all of the provisions of this chapter.(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: (a) The name, address, and telephone number of the employing unit, and, if applicable, the unemployment insurance account number of the employing unit.(b) The name, address, telephone number, and social security number of the individual that tests positive for the unlawful use of controlled substances.(c) The following information related to the conditional offer of employment that the employing unit offered to the individual:1. Documentation of the conditional offer of employment.2. The date on which the employing unit extended the conditional offer of employment to the individual.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.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.(d) The date and manner in which the employing unit informed the individual that positive test results may be submitted to the department.(e) The following information related to the administration of the test and the positive test results: 1. The name, address, and telephone number of the laboratory that conducted the test.2. The date on which the individual submitted to the test.3. The controlled substances detected in the test.4. A copy of the laboratory's report.(f) The date on which the employing unit received the results of the test from the laboratory.(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.(h) Any additional information requested by the department. 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 (414) 438-7705 or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.
(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: (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.(b) The employing unit complies with all of the provisions of this chapter.(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:(a) The name, address, and telephone number of the employing unit, and if applicable, the unemployment insurance account number of the employing unit.(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.(c) The following information related to the conditional offer of employment from the employing unit to the individual: 1. Documentation of the conditional offer of employment.2. The date on which the employing unit extended the conditional offer of employment to the individual.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.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.(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.(e) The following information related to the individual declining to submit to a test for the unlawful use of controlled substances:1. The date on which the individual declined to submit to a test.2. Documentation that the individual declined to submit to the test.3. The date on which the employing unit received notification that the individual declined to submit to the test.(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.(g) Any additional information requested by the department. 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 (414) 438-7705 or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.
(5) DEPARTMENT DETERMINATION OF AN INDIVIDUAL RECEIVING BENEFITS.(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.(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.(6) REBUTTABLE PRESUMPTION FOR FAILURE TO ACCEPT SUITABLE WORK.(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.(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: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.2. The employing unit withdrew the offer of employment before the employing unit received the positive test results.3. The individual held a valid prescription at the time of the test for each controlled substance detected in the test.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.5. The requirements under s. 108.04(9), Stats., apply to the work offered.6. Any circumstances which the department determines are beyond the individual's control.(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: 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.2. The individual was unable to complete a test for the unlawful use of controlled substances due to medical reasons.3. The individual accepted an offer of employment from another employing unit before or at the time the individual declined to submit to the test under sub. (3).4. The employing unit required the individual to pay for the test.5. The requirements under s. 108.04(9), Stats., apply to the work offered.6. Any circumstances which the department determines are beyond the individual's control.(7) PERIOD OF INELIGIBILITY AND REQUALIFICATION REQUIREMENTS FOR BENEFITS.(a) An individual under this section who has failed, without good cause, to accept suitable work due to positive test results without presenting evidence of a valid prescription, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual's weekly benefit rate under s. 108.05(1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.(b) Notwithstanding par. (a), an individual under this section who has failed, without good cause, to accept suitable work due to positive test results without presenting evidence of a valid prescription, may maintain eligibility for benefits under ch. 108, Stats., by enrolling in and complying with a substance abuse treatment program under s. DWD 131.30 and completing a job skills assessment as prescribed under s. DWD 131.40.(c) An individual under this section who has failed, without good cause, to accept suitable work by declining to submit to a test for the unlawful use of controlled substances, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual's weekly benefit rate under s. 108.05(1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.Wis. Admin. Code Department of Workforce Development DWD 131.10
Adopted by, EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5/1/2017Amended by, correction in (intro.) made under s. (2) (h) (Note), (4) (g) (Note), Stats., Register July 2017 No. 739, eff. 8/1/2017.Amended by, CR 18-033: am. (title), (1) (intro.), (a), (2) (intro.), (b), (c) 4., (d), (e) (intro.), (g), (3) (intro.), (a), (4) (intro.), (b), (c) 4., (d), (e) (intro.), (f), (6) (b) (intro.), 1., 2., 4., (c) (intro.), 1., 2., (7) (a) to (c) Register May 2019 No. 761, eff. 6/1/2019Amended by, correction in (2) (h) (Note), (4) (g) (Note) made under s. 13.92(4) (b) 6, Stats., Register March 2020 No. 771, eff. 4/1/2020