Various changes to the unemployment insurance and worker’s compensation laws. (FE)

Unemployment insurance; misconduct Under current law, a claimant for UI benefits whose work is terminated by his or her employer for misconduct by the claimant connected with the claimant’s work is ineligible to receive UI benefits until the claimant satisfies certain requalification criteria, and the claimant’s wages paid by the employer that terminates the claimant for misconduct are excluded for purposes of calculating benefit entitlement. Current law defines “misconduct” using a general, common law standard derived from Boynton Cab Co. v. Neubeck , 237 Wis. 249 (1941), and enumerates several specific types of conduct that also constitute misconduct. Under one of these specific provisions, misconduct includes 1) absenteeism on more than two occasions within the 120-day period before the date of the claimant’s termination, unless otherwise specified by his or her employer in an employment manual of which the claimant has acknowledged receipt with his or her signature, or 2) excessive tardiness by a claimant in violation of a policy of the employer that has been communicated to the claimant. In Department of Workforce Development v. Labor and Industry Review Commission (Beres) , 2018 WI 77, the supreme court held that an employer could, under the language described above, institute an attendance policy more restrictive than two occasions within the 120-day period.

Current law also provides that absenteeism or tardiness count as misconduct only if the claimant did not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness. In Bevco Precision Manufacturing v. Labor and Industry Review Commission , 2024 WI App. 54, the court of appeals held that under Beres , this qualifying language did not apply if an employer had adopted its own standard on absenteeism and tardiness, as described above.

The bill does all of the following:

1. Repeals the language referencing “excessive tardiness.” 2. Reverses the holding in Bevco by providing that a claimant’s notice and reason for an occasion of absenteeism or tardiness are to be analyzed under the common law misconduct standard. Under the bill, therefore, an employer may not establish its own policy for determining the reasonableness of absenteeism or tardiness. The bill does not, however, affect the general ability of an employer to institute a standard for absenteeism and tardiness more restrictive than two occasions within the 120-day period before termination.

3. Clarifies, in another provision defining misconduct, that “tribal government” has the meaning given under state and federal law for what is considered an Indian tribe.

Unemployment insurance; drug testing Current state law requires DWD to establish a program to test certain claimants who apply for UI benefits for the presence of controlled substances in a manner that is consistent with federal law. A claimant who tests positive for a controlled substance for which the claimant does not have a prescription is ineligible for UI benefits until certain requalification criteria are satisfied or unless he or she enrolls in a substance abuse treatment program and undergoes a job skills assessment, and a claimant who declines to submit to a test is simply ineligible for benefits until he or she requalifies. This bill repeals the requirement to establish the drug testing program.

Also under current law, an employer may voluntarily submit to DWD the results of a preemployment test for the presence of controlled substances that was conducted on an individual as a condition of an offer of employment or notify DWD that an individual declined to submit to such a test. If DWD then verifies that submission, the employee may be ineligible for UI benefits until he or she requalifies. However, a claimant who tested positive may maintain eligibility by enrolling in a substance abuse treatment program and undergoing a job skills assessment. This bill repeals these preemployment drug testing provisions.

The bill also repeals an appropriation to DWD for conducting screenings of applicants, testing applicants for controlled substances, the provision of substance abuse treatment to applicants and claimants, and related expenses. The bill replaces the repealed appropriation with a general appropriation to DWD for administration of the UI law.

Worker’s compensation; substantial fault Currently, under the worker’s compensation law, an employer is not liable for temporary disability benefits during an employee’s healing period if the employee is suspended or terminated from employment due to misconduct by the employee connected with the employee’s work. Current law defines “misconduct” by reference to the UI law. The bill changes the definition of “misconduct” under the UI law, which change also applies for purposes of the worker’s compensation law as described above.