Report Title:

Employment Privacy; Substance Abuse Testing

 

Description:

Allows the State or political subdivision employers to require applicants, appointees, employees, elected officials, and independent contractors to submit to drug testing. Does not apply to work positions under federal regulations.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

902

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO SUBSTANCE ABUSE TESTING.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Title 21, Hawaii Revised Statutes, is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

PRIVACY AND SUBSTANCE ABUSE TESTING OF PUBLIC WORKERS

§   -1 Right to privacy in the workplace. It is the public policy of the State of Hawaii that all citizens enjoy the benefit of the right to privacy in the workplace in accordance with article I, sections 6 and 7 of the Hawaii Constitution. It is also the public policy of the State of Hawaii that all public workers (as that term is defined in this chapter) are the servants of the public, in accordance with article I, section 1 and article VII of the Hawaii Constitution. As such, the Hawaii state government and all of its political and governmental subdivisions owe the public a duty of efficient, effective, safe, and economical services that puts neither people or property at risk of injury nor wastes taxpayer money. The purpose of this chapter is to ensure and enhance the quality of public service and to secure the public's trust through the adoption of a system of substance abuse screening and testing that assists in achieving the compelling state interest of eliminating substance abuse among public workers in the workplace.

§   -2 Definitions. As used in this chapter:

"Alcohol" means ethyl alcohol or ethanol.

"Applicant" means a person seeking employment with the State of Hawaii and all political and other governmental subdivisions of the State.

"Appointee" means any person appointed to a position, for compensation, with either the Hawaii state government, or any political or other governmental subdivision of the State.

"Board" means the Hawaii labor relations board.

"Confirmatory test" means a drug or alcohol test that uses a method of analysis determined to be reliable as provided in chapter 329B and rules adopted thereunder in establishing the identity and quantity of alcohol, drugs, or metabolites of drugs detected in an initial screening test.

"Department" means the department of labor and industrial relations.

"Director" means the director of labor and industrial relations.

"Drug" means a controlled substance as defined in chapter 329.

"Elected official" means any person who is elected to office for either the State of Hawaii or any political or other governmental subdivision of the State.

"Employee" means any person who performs services for compensation for either the State of Hawaii or any political or other governmental subdivision of the State, but shall not be construed as including an independent contractor.

"Employer" means either the State of Hawaii or any political or other governmental subdivision of the State.

"Independent contractor" means a person or entity that undertakes to perform work for an employer pursuant to contract, express or implied, without being subject to the control of an employer except as to the result of the work performed.

"Positive test result" means a finding through confirmatory testing of the presence of drugs, alcohol, or the metabolites of drugs in the sample tested in the levels at or above the cutoff levels as established by chapter 329B and the rules adopted thereunder.

"Prospective employee" means any person who has made an application to an employer, whether written or oral, to become an employee.

"Public worker" means any appointee, employee, elected official, or independent contractor as those terms are defined and used in this section.

"Random selection basis" means a mechanism for selection of persons for testing that:

(1) Results in an equal probability that any person from a group subject to the selection mechanism will be selected; and

(2) Does not give an employer discretion to waive the selection of any person selected under the mechanism.

"Reasonable cause" means a basis for forming a belief based on specific facts and rational inferences about a person drawn from those facts and is limited to the following:

(1) The person is observed to exhibit social or emotional behavior in the workplace significantly different from the person's usual behavior or former behavior that cannot be reasonably explained by the person following inquiry by the employer;

(2) The person is observed to exhibit impaired sensory, motor, or intellectual abilities in the workplace as compared to the person's usual or former abilities that cannot be reasonably explained following inquiry by the employer;

(3) The person is found by a physician, after examination, to exhibit physiological symptoms characteristic of drug or alcohol abuse;

(4) There exists a documented and severe decline in the quantity or quality of a person's work that cannot be reasonably explained by the person following inquiry by the employer; or

(5) There exists a documented history of work-related accidents involving the person that significantly exceeds the average accident rate for similarly situated employees of the employer that is not reasonably explained by the person following inquiry by the employer.

"Safety-sensitive position" means:

(1) A job, including any supervisory or management position, the performance of which would present a significant life-threatening danger to the person in the job, co-workers, or the public if the person in the job is under the influence of a drug or alcohol or which demands the exercise of discriminating judgment or a high degree of care and caution where the health or safety of the person in the job, co-workers, or the public is significantly involved; or

(2) A job directly related to enforcement of state or federal laws prohibiting the illegal use, sale, manufacture, or transportation of drugs or alcohol.

"Substance abuse test" means any testing procedure, excluding toxicology tests used in the direct clinical management of patients and tests for alcohol related to chapters 286 and 291, designed to take and analyze body fluids or materials from the body for the purpose of measuring the presence or absence of drugs, alcohol, or the metabolites of drugs in the sample tested.

§   -3 Testing; when permitted. (a) Except as provided in subsection (b), an employer shall not require, request, or suggest that any applicant, appointee, elected official, employee, or independent contractor submit to a substance abuse test as a condition of employment or of continued employment.

(b) An employer may require an applicant, appointee, elected official, employee, or independent contractor to submit to a substance abuse test only under the following circumstances:

(1) The employer has made a conditional job offer to the applicant, and the same test is requested or required of all applicants conditionally offered employment for that position;

(2) The appointee, elected official, employee, or independent contractor is given adequate notice, as required by this chapter, and is asked to submit to a random test to which all similarly situated persons are equally subject;

(3) The employer has a reasonable cause to believe that the appointee, elected official, employee, or independent contractor is under the influence of drugs or alcohol;

(4) The appointee, elected official, employee, or independent contractor has sustained a personal injury, has caused another appointee, elected official, employee, or independent contractor to sustain a personal injury, or has caused a work-related accident and the employer has a reasonable cause to believe that the injury or accident was a result of the appointee, elected official, employee, or independent contractor having been under the influence of alcohol or drugs or alcohol; or

(5) The appointee, elected official, employee, or independent contractor has violated the employer's work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol while on the employer's premises, or is operating the employer's vehicle, machinery, or equipment; provided the work rules are in writing and contained in the employer's written substance abuse testing policy.

(c) No employer shall require, request, or suggest that any person submit to a substance abuse test which does not meet all the requirements of this chapter, except for those persons who are covered by any substance abuse testing rules or regulations adopted by the state department of transportation, the United States Department of Transportation, or any other federal agency, or by a substance abuse testing provision under a collective bargaining agreement. An employer may require, request, or suggest that a person submit to substance abuse testing pursuant to subsection (b) only if all of the following requirements are met:

(1) The testing is undertaken pursuant to a written substance abuse testing policy which complies with section    -5;

(2) The testing complies with the procedures in section    -6;

(3) The employer assumes the cost for the testing; and

(4) The employer has established an employee assistance program in which persons who test positive for substance abuse may participate at the expense of the employer. The employer may meet this requirement by participating in a cooperative employee assistance program that serves the employees of more than one employer.

§   -4 Laboratory requirements. All substance abuse testing performed pursuant to this chapter shall be performed only by a testing laboratory and only in accordance with the testing procedures and standards as provided in chapter 329B and the rules adopted thereunder.

§   -5 Employer substance abuse testing policy; notice, contents. (a) An employer shall:

(1) Provide a copy of its substance abuse testing policy to each appointee, elected official, employee, or independent contractor on the date of employment or the contract or on the date of adoption of the policy, whichever is later, and each applicant on the date of application; and

(2) Post notices in an appropriate and conspicuous location on the employer's premises if the employer amends its substance abuse testing policy, and make a copy of any amendments available to each employee or independent contractor not less than forty-five days prior to the effective date of the amendment.

(b) An employer's substance abuse testing policy shall set forth the following:

(1) The persons subject to testing under the policy;

(2) The circumstances under which the testing may be required;

(3) The right of a person to refuse the testing and the consequences of refusal;

(4) Any adverse action that may be taken against a person based upon a positive test result;

(5) The right of a person to explain a positive test result or to request a retest of the positive test result;

(6) The specific substances that will be screened by the test and a statement that over-the-counter medications or other prescribed drugs may result in a positive test result and that disclosure of the use of such medications or drugs may not be used as a basis to terminate, limit, or deny appointment or employment;

(7) The availability of an appeal procedure to challenge a positive test result; and

(8) Any other information as may be required by the director.

§   -6 Testing procedures. (a) Prior to the collection of any sample for testing, an employer shall give written notice to a person of the employer's intent to require that person to submit to substance abuse testing. The notice shall be provided in such a manner as to ensure that the confidentiality of the person is not breached and to provide a means to verify the date and time that the notice was delivered. The person shall be afforded at least eight hours (based on regularly scheduled work hours from which the person is not lawfully absent) to provide a sample for testing following notice. The notice shall contain the following:

(1) The location where the sample is to be collected, the type of sample to be collected, and the deadline by which the sample must be provided;

(2) The basis for the determination to test, if applicable, including a summary of all the evidence upon which the employer intends to rely in support of that determination;

(3) The notice of the right of the person to appeal the determination to test;

(4) A medication disclosure form to permit the person to disclose any over-the-counter medication or prescribed drug that the person has taken within the previous thirty days which may result in a positive test result shall be provided to the person as provided in chapter 329B; and

(5) Any other information as may be required by the director.

(b) Each employer shall comply with the procedures adopted by the director of health pursuant to chapter 329B with respect to the following:

(1) Procedures for taking of samples that ensure privacy to the persons tested and prevent or detect tampering with the sample;

(2) Chain of custody procedures to ensure proper identification, labeling, and handling of the samples to be tested;

(3) Retention and storage procedures and durations to ensure availability of samples for retesting when necessary; and

(4) Procedures to ensure confidentiality of the substance abuse testing procedures and substance abuse test information.

§   -7 Determination of safety-sensitive position. Upon the filing of a request by an employer, employee, applicant, independent contractor, elected official, or appointee the director shall make a determination as to whether a job is considered to be a safety-sensitive position. The director's decision shall be subject to review by the Hawaii labor relations board if any party submits a request to the board within ninety days of the director's determination. The request shall be considered by the board in accordance with section 89-5.

§   -8 Right to appeal employer determination to test; review panel. (a) Any person who is required to undergo substance abuse testing by the employer pursuant to section    -3(b)(3) or (4) shall have the right to appeal to the Hawaii labor relations board the employer's determination to test. The employer's decision shall be subject to review by the board if any party submits a request to the board within ninety days of the employer's determination. The request shall be considered by the board in accordance with section 89-5.

(b) The employer may require that a sample be taken for purposes of testing at the time notice of testing is given; provided that no test shall be performed on that sample pending the decision on the appeal by the board. The employer shall bear the burden of proving by a preponderance of the evidence that the determination to test is justified.

(c) If the board upholds the determination to test, the test shall be conducted without delay. If the board finds the determination to test is not justified, the sample shall be destroyed without being tested. No disciplinary action may be taken against the person to be tested pending the decision on the appeal by the board.

§   -9 Retest; request by person tested. Any person required to submit to a test under this chapter which results in a positive test result shall be entitled to request a retest. Any retest so requested shall be at the expense of the person tested; provided that if the retest result is negative, the employer shall reimburse the person for any payment made for the retest.

§   -10 Disclosure of test results; confidentiality. Any information concerning a substance abuse test pursuant to this chapter shall be strictly confidential. The information shall not be released to anyone without the informed written consent of the person tested and shall not be released or made public upon subpoena or any other method of discovery, except that information related to a positive test result shall be disclosed to the employer, the person tested, and any third party or decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the person tested and arising from a positive test result. Any person who receives or comes into possession of any information protected under this chapter shall be subject to the same obligation of confidentiality as the party from whom the information was received.

§   -11 Invalidation of test results. Failure to adopt or adhere to all the procedures contained in this chapter shall invalidate the test result and the result may not be reported or otherwise used for any purpose.

§   -12 Disciplinary actions against employees. (a) An employer shall not discharge, discipline, discriminate against, or request or require rehabilitation of a person prior to the receipt of a positive test result. An employer may temporarily suspend with pay or transfer at the same rate of pay a person pending the outcome of a confirmatory test; provided the employer reasonably believes that the action is necessary to protect the health or safety of the person, co-workers, or the public. A person may be suspended without pay pending the outcome of a confirmatory retest requested by that person; provided that if the retest result is negative, the employer shall reimburse the person any back pay lost during the suspension without pay.

(b) The person tested shall be afforded the opportunity to rebut or explain a positive test result and the employer may not unreasonably disregard the evidence or explanation provided by that person. An employer may not discharge a person whose positive test result was the first such result for that person on a substance abuse test requested by the employer if the person complies with one of the following provisions:

(1) The person agrees to:

(A) Either go on leave without pay or continue working; and

(B) Participate in an employee assistance program at the employer's expense, which meets the program standards set by the Association of Labor-Management Administrators and Consultants on Alcoholism and successfully completes the employee assistance program; or

(2) If the person elects not to participate in an employee assistance program, the person is willing to submit to not more than six subsequent substance abuse tests performed at randomly selected times over a six-month period which may be at the person's expense and the test results are negative.

(c) While a person is participating in a substance abuse rehabilitation program, including an employee assistance program, substance abuse testing may be conducted without notice by the rehabilitation or treatment provider as required, requested, or suggested by that provider; provided that:

(1) The results of any substance abuse tests so administered may not be released to the employer if the person is on leave without pay;

(2) An employer may not require, request, or suggest that any substance abuse test be administered to any person while the person is undergoing the rehabilitation or treatment if the person is on leave without pay; and

(3) The testing shall comply with the procedures and standards in this chapter.

(d) The person tested may not be terminated from employment if the person agrees to participate in and then successfully completes the employee assistance program. The person may be suspended only for the period of time necessary to complete the program but in no event longer than three months. The person may be terminated if:

(1) After successfully completing an employee assistance program, while on leave without pay, the person is subsequently administered a substance abuse test which results in a positive finding; or

(2) At any time while not on leave without pay, the person is subsequently administered a substance abuse test which results in a positive finding.

(e) An employer shall not refuse to hire, discharge, discipline, discriminate against, or request or require rehabilitation of a person on the basis of medical history information revealed to the employer in connection with a substance abuse test under this chapter unless the person was under an affirmative duty to provide that information before, upon, or after hire.

§   -13 Federal preemption. This chapter shall not apply to employees, applicants, and independent contractors when the specific work performed requires those persons to be subject to substance abuse testing pursuant to:

(1) Federal regulations that specifically preempt state regulation of substance abuse testing with respect to those persons;

(2) Federal regulations or requirements necessary to operate federally regulated facilities; or

(3) Federal contracts where the substance abuse testing is expressly mandated for security, safety, or protection of sensitive or proprietary data.

§   -14 Construction. Nothing in this chapter shall be construed to restrict an employer's authority to prohibit the nonprescribed use of drugs or alcohol during work hours, or restrict an employer's authority to discipline, suspend, or dismiss a person for the use of drugs or alcohol during work hours.

§   -15 Unlawful searches and seizures. Employees, appointees, elected officials, and independent contractors shall be secure in their personal papers and effects and in other areas where they reasonably may expect privacy against unreasonable searches, seizures, and invasions of privacy by the employer. No employer may demand, require, or request employees, appointees, elected officials, or independent contractors submit to searches of the body, person, personal affects of a person, or other areas where employees reasonably may expect privacy as a condition of continued employment other than the testing procedures explicitly set forth herein. Nothing in this chapter shall prohibit an employer from requiring a specific employee, appointee, elected official, or independent contractor to submit to an appropriate search if the employer has reasonable grounds to believe that the employee, appointee, elected official, or independent contractor is in possession of unlawful substances on the employer's premises or that the employee is impaired in the performance of duties and responsibilities and presents a clear and present danger to the physical safety of the person, another person working for the employer or to a member of the public. Under no circumstance may an employer request, require, or conduct random company-wide searches of an employee's person, personal effects, or other areas where the employee reasonably may expect privacy.

§   -16 Remedies. (a) Any aggrieved person or employee organization representing an aggrieved applicant or employee may appeal any action of the director by filing a request for review with the Hawaii labor relations board within ninety days of the director's determination. The request shall be considered by the board in accordance with section 89-5. A violation of this chapter shall be considered a prohibited practice under chapter 89 and the board shall provide appropriate remedies where a violation has been found.

(b) Any employer or person who knowingly violates any provision of this chapter shall be fined not less than $1,000 and not more than $10,000 for each violation plus reasonable court costs and attorney's fees as determined by the court, which penalty and costs shall be paid to the aggrieved person. This subsection shall not be construed as limiting the right of any person or persons to recover actual damages.

(c) In addition to any other enforcement mechanism allowed by law, any employer or person who commits, or proposes to commit, any act in violation of any provision of this chapter may be enjoined therefrom by a court of competent jurisdiction. An action for injunctive relief under this subsection may be brought by any aggrieved person who will fairly and adequately represent the interests of the protected class.

§   -17 Rules. The department shall adopt rules under chapter 91 necessary to implement this chapter."

SECTION 2. Act 253, Session Laws of Hawaii 2000, is amended by amending subsection (i) of section 89-5, Hawaii Revised Statutes, in section 95 to read as follows:

"SECTION 95. Section 89-5, Hawaii Revised Statutes, is amended to read as follows:

"(i) In addition to the powers and functions provided in other sections of this chapter, the board shall:

(1) Establish procedures for, investigate, and resolve, any dispute concerning the designation of an appropriate bargaining unit and the application of section 89-6 to specific employees and positions;

(2) Establish procedures for, resolve disputes with respect to, and supervise the conduct of, elections for the determination of employee representation;

(3) Resolve controversies under this chapter;

(4) Conduct proceedings on complaints of prohibited practices by employers, employees, and employee organizations and take such actions with respect thereto as it deems necessary and proper;

(5) Hold such hearings and make such inquiries, as it deems necessary, to carry out properly its functions and powers, and for the purpose of such hearings and inquiries, administer oaths and affirmations, examine witnesses and documents, take testimony and receive evidence, compel attendance of witnesses and the production of documents by the issuance of subpoenas, and delegate such powers to any member of the board or any person appointed by the board for the performance of its functions;

(6) Determine qualifications and establish, after reviewing nominations submitted by the public employers and employee organizations, lists of qualified persons, broadly representative of the public, to be available to serve as mediators, members of fact-finding panels, or arbitrators;

(7) Establish a fair and reasonable range of daily or hourly rates at which mediators, members of fact-finding panels, and arbitrators on the lists established under paragraph (6) are to be compensated;

(8) Conduct studies on problems pertaining to public employee-management relations, and make recommendations with respect thereto to the legislative bodies; request information and data from state and county departments and agencies and employee organizations necessary to carry out its functions and responsibilities; make available to all concerned parties, including mediators, members of fact-finding panels and arbitrators, statistical data relating to wages, benefits, and employment practices in public and private employment to assist them in resolving issues in negotiations;

(9) Adopt rules relative to the exercise of its powers and authority and to govern the proceedings before it in accordance with chapter 91; [and]

(10) Execute all of its responsibilities in a timely manner so as to facilitate and expedite the resolution of issues before it[.]; and

(11) Accept and make determinations on appeals of employment-related substance abuse testing pursuant to chapter    ."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. It is the intent of this Act not to jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor may modify the strict provisions of this Act, but shall promptly report any such modification with reasons therefor to the legislature at its next session thereafter for review by the legislature.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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