Bill Text: MI HB4952 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Employment security; benefits; positive drug test; treat as refusal of suitable employment for purposes of disqualification. Amends sec. 29 of 1936 (Ex Sess) PA 1 (MCL 421.29). TIE BAR WITH: HB 4949'13, HB 4950'13, HB 4951'13, HB 4953'13, HB 4954'13
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2013-10-30 - Assigned Pa 146'13 With Immediate Effect [HB4952 Detail]
Download: Michigan-2013-HB4952-Engrossed.html
HB-4952, As Passed Senate, October 17, 2013
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 4952
A bill to amend 1936 (Ex Sess) PA 1, entitled
"Michigan employment security act,"
by amending section 29 (MCL 421.29), as amended by 2011 PA 269.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 29. (1) Except as provided in subsection (5), an
individual is disqualified from receiving benefits if he or she:
(a) Left work voluntarily without good cause attributable to
the employer or employing unit. An individual who left work is
presumed to have left work voluntarily without good cause
attributable to the employer or employing unit. An individual who
is absent from work for a period of 3 consecutive work days or more
without contacting the employer in a manner acceptable to the
employer and of which the individual was informed at the time of
hire shall be considered to have voluntarily left work without good
cause attributable to the employer. An individual who becomes
unemployed as a result of negligently losing a requirement for the
job of which he or she was informed at the time of hire shall be
considered to have voluntarily left work without good cause
attributable to the employer. An individual claiming benefits under
this act has the burden of proof to establish that he or she left
work involuntarily or for good cause that was attributable to the
employer or employing unit. An individual claiming to have left
work involuntarily for medical reasons must have done all of the
following before the leaving: secured a statement from a medical
professional that continuing in the individual's current job would
be harmful to the individual's physical or mental health;
unsuccessfully attempted to secure alternative work with the
employer; and unsuccessfully attempted to be placed on a leave of
absence with the employer to last until the individual's mental or
physical health would no longer be harmed by the current job.
However, if any of the following conditions is met, the leaving
does not disqualify the individual:
(i) The individual has an established benefit year in effect
and during that benefit year leaves unsuitable work within 60 days
after the beginning of that work. Benefits paid after a leaving
under this subparagraph shall not be charged to the experience
account of the employer the individual left, but shall be charged
instead to the nonchargeable benefits account.
(ii) The individual is the spouse of a full-time member of the
United States armed forces, and the leaving is due to the military
duty reassignment of that member of the United States armed forces
to a different geographic location. Benefits paid after a leaving
under this subparagraph shall not be charged to the experience
account of the employer the individual left, but shall be charged
instead to the nonchargeable benefits account.
(iii) The individual is concurrently working part-time for an
employer or employing unit and for another employer or employing
unit and voluntarily leaves the part-time work while continuing
work with the other employer. The portion of the benefits paid in
accordance with this subparagraph that would otherwise be charged
to the experience account of the part-time employer that the
individual left shall not be charged to the account of that
employer, but shall be charged instead to the nonchargeable
benefits account.
(b) Was suspended or discharged for misconduct connected with
the individual's work or for intoxication while at work.
(c) Failed without good cause to apply diligently for
available suitable work after receiving notice from the
unemployment agency of the availability of that work or failed to
apply for work with employers that could reasonably be expected to
have suitable work available.
(d) Failed without good cause while unemployed to report to
the individual's former employer or employing unit within a
reasonable time after that employer or employing unit provided
notice of the availability of an interview concerning available
suitable work with the former employer or employing unit.
(e) Failed without good cause to accept suitable work offered
to the individual or to return to the individual's customary self-
employment, if any, when directed by the employment office or the
unemployment agency. An employer that receives a monetary
determination under section 32 may notify the unemployment agency
regarding the availability of suitable work with the employer on
the monetary determination or other form provided by the
unemployment agency. Upon receipt of the notice of the availability
of suitable work, the unemployment agency shall notify the claimant
of the availability of suitable work. Until 1 year after the
effective date of the amendatory act that added this sentence, an
individual is considered to have refused an offer of suitable work
if the prospective employer requires as a condition of the offer a
drug test that is subject to the same terms and conditions as a
drug test administered under subdivision (m), and the employer
withdraws the conditional offer after either of the following:
(i) The individual tests positive for a controlled substance
and lacks a valid, documented prescription, as defined in section
17708 of the public health code, 1978 PA 368, MCL 333.17708, for
the controlled substance issued to the individual by his or her
treating physician.
(ii) The individual refuses without good cause to submit to the
drug test.
(f) Lost his or her job due to absence from work resulting
from a violation of law for which the individual was convicted and
sentenced to jail or prison. This subdivision does not apply if
conviction of an individual results in a sentence to county jail
under conditions of day parole as provided in 1962 PA 60, MCL
801.251 to 801.258, or if the conviction was for a traffic
violation that resulted in an absence of less than 10 consecutive
work days from the individual's place of employment.
(g) Is discharged, whether or not the discharge is
subsequently reduced to a disciplinary layoff or suspension, for
participation in either of the following:
(i) A strike or other concerted action in violation of an
applicable collective bargaining agreement that results in
curtailment of work or restriction of or interference with
production.
(ii) A wildcat strike or other concerted action not authorized
by the individual's recognized bargaining representative.
(h) Was discharged for an act of assault and battery connected
with the individual's work.
(i) Was discharged for theft connected with the individual's
work.
(j) Was discharged for willful destruction of property
connected with the individual's work.
(k) Committed a theft after receiving notice of a layoff or
discharge, but before the effective date of the layoff or
discharge, resulting in loss or damage to the employer who would
otherwise be chargeable for the benefits, regardless of whether the
individual qualified for the benefits before the theft.
(l) Was employed by a temporary help firm, which as used in
this section means an employer whose primary business is to provide
a client with the temporary services of 1 or more individuals under
contract with the employer, to perform services for a client of
that firm if each of the following conditions is met:
(i) The temporary help firm provided the employee with a
written notice before the employee began performing services for
the client stating in substance both of the following:
(A) That within 7 days after completing services for a client
of the temporary help firm, the employee is under a duty to notify
the temporary help firm of the completion of those services.
(B) That a failure to provide the temporary help firm with
notice of the employee's completion of services pursuant to sub-
subparagraph (A) constitutes a voluntary quit that will affect the
employee's eligibility for unemployment compensation should the
employee seek unemployment compensation following completion of
those services.
(ii) The employee did not provide the temporary help firm with
notice that the employee had completed his or her services for the
client within 7 days after completion of his or her services for
the client.
(m) Was discharged for illegally ingesting, injecting,
inhaling, or possessing a controlled substance on the premises of
the employer; refusing to submit to a drug test that was required
to be administered in a nondiscriminatory manner; or testing
positive on a drug test, if the test was administered in a
nondiscriminatory manner. If the worker disputes the result of the
testing, and if a generally accepted confirmatory test has not been
administered on the same sample previously tested, then a generally
accepted confirmatory test shall be administered on that sample. If
the confirmatory test also indicates a positive result for the
presence of a controlled substance, the worker who is discharged as
a result of the test result will be disqualified under this
subdivision. A report by a drug testing facility showing a positive
result for the presence of a controlled substance is conclusive
unless there is substantial evidence to the contrary. As used in
this subdivision and subdivision (e):
(i) "Controlled substance" means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(ii) "Drug test" means a test designed to detect the illegal
use of a controlled substance.
(iii) "Nondiscriminatory manner" means administered impartially
and objectively in accordance with a collective bargaining
agreement, rule, policy, a verbal or written notice, or a labor-
management contract.
(n) Theft from the employer that resulted in the employee's
conviction, within 2 years of the date of the discharge, of theft
or a lesser included offense.
(2) A disqualification under subsection (1) begins the week in
which the act or discharge that caused the disqualification occurs
and continues until the disqualified individual requalifies under
subsection
(3). , except that for benefit years beginning before
October
1, 2000, the disqualification does not prevent the payment
of
benefits if there are credit weeks, other than multiemployer
credit
weeks, after the most recent disqualifying act or discharge.
(3) After the week in which the disqualifying act or discharge
described in subsection (1) occurs, an individual who seeks to
requalify for benefits is subject to all of the following:
(a) For benefit years established before October 1, 2000, the
individual shall complete 6 requalifying weeks if he or she was
disqualified under subsection (1)(c), (d), (e), (f), (g), or (l), or
13 requalifying weeks if he or she was disqualified under
subsection (1)(h), (i), (j), (k), or (m). A requalifying week
required under this subdivision is each week in which the
individual does any of the following:
(i) Earns or receives remuneration in an amount at least equal
to an amount needed to earn a credit week, as that term is defined
in section 50.
(ii) Otherwise meets all of the requirements of this act to
receive a benefit payment if the individual were not disqualified
under subsection (1).
(iii) Receives a benefit payment based on credit weeks
subsequent to the disqualifying act or discharge.
(b) For benefit years established before October 1, 2000, if
the individual is disqualified under subsection (1)(a) or (b), he
or she shall requalify, after the week in which the disqualifying
discharge occurred by earning in employment for an employer liable
under this act or the unemployment compensation act of another
state an amount equal to, or in excess of, 7 times the individual's
potential weekly benefit rate, calculated on the basis of
employment with the employer involved in the disqualification, or
by earning in employment for an employer liable under this act or
the unemployment compensation act of another state an amount equal
to, or in excess of, 40 times the state minimum hourly wage times
7, whichever is the lesser amount.
(c) For benefit years established before October 1, 2000, a
benefit payable to an individual disqualified under subsection
(1)(a) or (b) shall be charged to the nonchargeable benefits
account, and not to the account of the employer with whom the
individual was involved in the disqualification.
(d) For benefit years beginning on or after October 1, 2000,
after the week in which the disqualifying act or discharge
occurred, an individual shall complete 13 requalifying weeks if he
or she was disqualified under subsection (1)(c), (d), (e), (f),
(g), or (l), or 26 requalifying weeks if he or she was disqualified
under subsection (1)(h), (i), (j), (k), (m), or (n). A requalifying
week required under this subdivision is each week in which the
individual does any of the following:
(i) Earns or receives remuneration in an amount equal to at
least 1/13 of the minimum amount needed in a calendar quarter of
the base period for an individual to qualify for benefits, rounded
down to the nearest whole dollar.
(ii) Otherwise meets all of the requirements of this act to
receive a benefit payment if the individual was not disqualified
under subsection (1).
(e) For benefit years beginning on or after October 1, 2000
and beginning before April 26, 2002, if the individual is
disqualified under subsection (1)(a) or (b), he or she shall
requalify, after the week in which the disqualifying act or
discharge occurred by earning in employment for an employer liable
under this act or the unemployment compensation law of another
state at least the lesser of the following:
(i) Seven times the individual's weekly benefit rate.
(ii) Forty times the state minimum hourly wage times 7.
(f) For benefit years beginning on or after April 26, 2002, if
the individual is disqualified under subsection (1)(a), he or she
shall requalify, after the week in which the disqualifying act or
discharge occurred by earning in employment for an employer liable
under this act or the unemployment compensation law of another
state at least 12 times the individual's weekly benefit rate.
(g) For benefit years beginning on or after April 26, 2002, if
the individual is disqualified under subsection (1)(b), he or she
shall requalify, after the week in which the disqualifying act or
discharge occurred by earning in employment for an employer liable
under this act or the unemployment compensation law of another
state at least 17 times the individual's weekly benefit rate.
(h) A benefit payable to the individual disqualified or
separated under disqualifying circumstances under subsection (1)(a)
or (b), shall be charged to the nonchargeable benefits account, and
not to the account of the employer with whom the individual was
involved in the separation. Benefits payable to an individual
determined by the unemployment agency to be separated under
disqualifying circumstances shall not be charged to the account of
the employer involved in the disqualification for any period after
the employer notifies the unemployment agency of the claimant's
possible ineligibility or disqualification. However, an individual
filing a new claim for benefits who reports the reason for
separation from a base period employer as a voluntary leaving shall
be presumed to have voluntarily left without good cause
attributable to the employer and shall be disqualified unless the
individual provides substantial evidence to rebut the presumption.
If a disqualifying act or discharge occurs during the individual's
benefit year, any benefits that may become payable to the
individual in a later benefit year based on employment with the
employer involved in the disqualification shall be charged to the
nonchargeable benefits account.
(4) The maximum amount of benefits otherwise available under
section 27(d) to an individual disqualified under subsection (1) is
subject to all of the following conditions:
(a) For benefit years established before October 1, 2000, if
the individual is disqualified under subsection (1)(c), (d), (e),
(f), (g), or (l) and the maximum amount of benefits is based on
wages and credit weeks earned from an employer before an act or
discharge involving that employer, the amount shall be reduced by
an amount equal to the individual's weekly benefit rate as to that
employer multiplied by the lesser of either of the following:
(i) The number of requalifying weeks required of the individual
under this section.
(ii) The number of weeks of benefit entitlement remaining with
that employer.
(b) If the individual has insufficient or no potential benefit
entitlement remaining with the employer involved in the
disqualification in the benefit year in existence on the date of
the disqualifying determination, a reduction of benefits described
in this subsection applies in a succeeding benefit year with
respect to any benefit entitlement based upon credit weeks earned
with the employer before the disqualifying act or discharge.
(c) For benefit years established before October 1, 2000, an
individual disqualified under subsection (1)(h), (i), (j), (k), or
(m) is not entitled to benefits based on wages and credit weeks
earned before the disqualifying act or discharge with the employer
involved in the disqualification.
(d) The benefit entitlement of an individual disqualified
under subsection (1)(a) or (b) is not subject to reduction as a
result of that disqualification.
(e) A denial or reduction of benefits under this subsection
does not apply to benefits based upon multiemployer credit weeks.
(f) For benefit years established on or after October 1, 2000,
if the individual is disqualified under subsection (1)(c), (d),
(e), (f), (g), or (l), the maximum number of weeks otherwise
applicable in calculating benefits for the individual under section
27(d) shall be reduced by the lesser of the following:
(i) The number of requalifying weeks required of the individual
under this section.
(ii) The number of weeks of benefit entitlement remaining on
the claim.
(g) For benefit years beginning on or after October 1, 2000,
the benefits of an individual disqualified under subsection (1)(h),
(i), (j), (k), (m), or (n) shall be reduced by 13 weeks and any
weekly benefit payments made to the claimant thereafter shall be
reduced by the portion of the payment attributable to base period
wages paid by the base period employer involved in a
disqualification under subsection (1)(h), (i), (j), (k), (m), or
(n).
(5) If an individual leaves work to accept permanent full-time
work with another employer or to accept a referral to another
employer from the individual's union hiring hall and performs
services for that employer, or if an individual leaves work to
accept a recall from a former employer, all of the following apply:
(a) Subsection (1) does not apply.
(b) Wages earned with the employer whom the individual last
left, including wages previously transferred under this subsection
to the last employer, for the purpose of computing and charging
benefits, are wages earned from the employer with whom the
individual accepted work or recall, and benefits paid based upon
those wages shall be charged to that employer.
(c) When issuing a determination covering the period of
employment with a new or former employer described in this
subsection, the unemployment agency shall advise the chargeable
employer of the name and address of the other employer, the period
covered by the employment, and the extent of the benefits that may
be charged to the account of the chargeable employer.
(6) In determining whether work is suitable for an individual,
the unemployment agency shall consider the degree of risk involved
to the individual's health, safety, and morals, the individual's
physical fitness and prior training, the individual's length of
unemployment and prospects for securing local work in the
individual's customary occupation, and the distance of the
available work from the individual's residence. Additionally, the
unemployment agency shall consider the individual's experience and
prior earnings, but an unemployed individual who refuses an offer
of work determined to be suitable under this section shall be
denied benefits if the pay rate for that work is at least 70% of
the gross pay rate he or she received immediately before becoming
unemployed. Beginning January 15, 2012, after an individual has
received benefits for 50% of the benefit weeks in the individual's
benefit year, work shall not be considered unsuitable because it is
outside of the individual's training or experience or unsuitable as
to pay rate if the pay rate for that work meets or exceeds the
minimum wage; is at least the prevailing mean wage for similar work
in the locality for the most recent full calendar year for which
data are available as published by the department of technology,
management, and budget as "wages by job title", by standard
metropolitan statistical area; and is 120% or more of the
individual's weekly benefit amount.
(7) Work is not suitable and benefits shall not be denied
under this act to an otherwise eligible individual for refusing to
accept new work under any of the following conditions:
(a) If the position offered is vacant due directly to a
strike, lockout, or other labor dispute.
(b) If the remuneration, hours, or other conditions of the
work offered are substantially less favorable to the individual
than those prevailing for similar work in the locality.
(c) If as a condition of being employed, the individual would
be required to join a company union or to resign from or refrain
from joining a bona fide labor organization.
(8) All of the following apply to an individual who seeks
benefits under this act:
(a) An individual is disqualified from receiving benefits for
a week in which the individual's total or partial unemployment is
due to either of the following:
(i) A labor dispute in active progress at the place at which
the individual is or was last employed, or a shutdown or start-up
operation caused by that labor dispute.
(ii) A labor dispute, other than a lockout, in active progress
or a shutdown or start-up operation caused by that labor dispute in
any other establishment within the United States that is both
functionally integrated with the establishment described in
subparagraph (i) and operated by the same employing unit.
(b) An individual's disqualification imposed or imposable
under this subsection is terminated if the individual performs
services in employment with an employer in at least 2 consecutive
weeks falling wholly within the period of the individual's total or
partial unemployment due to the labor dispute, and in addition
earns wages in each of those weeks in an amount equal to or greater
than the individual's actual or potential weekly benefit rate.
(c) An individual is not disqualified under this subsection if
the individual is not directly involved in the labor dispute. An
individual is not directly involved in a labor dispute unless any
of the following are established:
(i) At the time or in the course of a labor dispute in the
establishment in which the individual was then employed, the
individual in concert with 1 or more other employees voluntarily
stopped working other than at the direction of the individual's
employing unit.
(ii) The individual is participating in, financing, or directly
interested in the labor dispute that causes the individual's total
or partial unemployment. The payment of regular union dues, in
amounts and for purposes established before the inception of the
labor dispute, is not financing a labor dispute within the meaning
of this subparagraph.
(iii) At any time a labor dispute in the establishment or
department in which the individual was employed does not exist, and
the individual voluntarily stops working, other than at the
direction of the individual's employing unit, in sympathy with
employees in some other establishment or department in which a
labor dispute is in progress.
(iv) The individual's total or partial unemployment is due to a
labor dispute that was or is in progress in a department, unit, or
group of workers in the same establishment.
(d) As used in this subsection, "directly interested" shall be
construed and applied so as not to disqualify individuals
unemployed as a result of a labor dispute the resolution of which
may not reasonably be expected to affect their wages, hours, or
other conditions of employment, and to disqualify individuals whose
wages, hours, or conditions of employment may reasonably be
expected to be affected by the resolution of the labor dispute. A
"reasonable expectation" of an effect on an individual's wages,
hours, or other conditions of employment exists, in the absence of
a substantial preponderance of evidence to the contrary, in any of
the following situations:
(i) If it is established that there is in the particular
establishment or employing unit a practice, custom, or contractual
obligation to extend within a reasonable period to members of the
individual's grade or class of workers in the establishment in
which the individual is or was last employed changes in terms and
conditions of employment that are substantially similar or related
to some or all of the changes in terms and conditions of employment
that are made for the workers among whom there exists the labor
dispute that has caused the individual's total or partial
unemployment.
(ii) If it is established that l of the issues in or purposes
of the labor dispute is to obtain a change in the terms and
conditions of employment for members of the individual's grade or
class of workers in the establishment in which the individual is or
was last employed.
(iii) If a collective bargaining agreement covers both the
individual's grade or class of workers in the establishment in
which the individual is or was last employed and the workers in
another establishment of the same employing unit who are actively
participating in the labor dispute, and that collective bargaining
agreement is subject by its terms to modification, supplementation,
or replacement, or has expired or been opened by mutual consent at
the time of the labor dispute.
(e) In determining the scope of the grade or class of workers,
evidence of the following is relevant:
(i) Representation of the workers by the same national or
international organization or by local affiliates of that national
or international organization.
(ii) Whether the workers are included in a single, legally
designated, or negotiated bargaining unit.
(iii) Whether the workers are or within the past 6 months have
been covered by a common master collective bargaining agreement
that sets forth all or any part of the terms and conditions of the
workers' employment, or by separate agreements that are or have
been bargained as a part of the same negotiations.
(iv) Any functional integration of the work performed by those
workers.
(v) Whether the resolution of those issues involved in the
labor dispute as to some of the workers could directly or
indirectly affect the advancement, negotiation, or settlement of
the same or similar issues in respect to the remaining workers.
(vi) Whether the workers are currently or have been covered by
the same or similar demands by their recognized or certified
bargaining agent or agents for changes in their wages, hours, or
other conditions of employment.
(vii) Whether issues on the same subject matter as those
involved in the labor dispute have been the subject of proposals or
demands made upon the employing unit that would by their terms have
applied to those workers.
(9) Notwithstanding subsections (1) to (8), if the employing
unit submits notice to the unemployment agency of possible
ineligibility or disqualification beyond the time limits prescribed
by
unemployment agency rule , the notice shall not form the basis
of
a determination of ineligibility or disqualification for a claim
period
compensated before the receipt of the notice by the
unemployment
agency.and the unemployment
agency concludes that
benefits should not have been paid, the claimant shall repay the
benefits paid during the entire period of ineligibility or
disqualification. The unemployment agency shall not charge interest
on repayments required under this subsection.
(10) An individual is disqualified from receiving benefits for
any week or part of a week in which the individual has received, is
receiving, or is seeking unemployment benefits under an
unemployment compensation law of another state or of the United
States. If the appropriate agency of the other state or of the
United States finally determines that the individual is not
entitled to unemployment benefits, the disqualification described
in this subsection does not apply.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) House Bill No. 4949.
(b) House Bill No. 4950.
(c) House Bill No. 4951.
(d) House Bill No. 4953.
(e) House Bill No. 4954.
