State Employee Drug Testing
Creates a drug-free workplace program for state employees.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO STATE EMPLOYEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to require each state agency to implement a drug-free workplace program. The Act requires each appropriate agency to drug test employees in safety-related jobs and authorizes testing of all:
(1) Applicants for employment;
(2) Employees of whom reasonable suspicion of drug use exists;
(3) Employees who have passed through a drug treatment program; and
(4) Employees undergoing a routine employee physical examination
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
STATE EMPLOYEE DRUG-FREE WORKPLACE PROGRAM
§ -l Definitions. As used in this chapter, unless the context requires otherwise:
"Agency" means an internal division of a branch of government, such as a department, division, branch, agency, program, or office.
"Controlled substance" means a controlled substance listed in chapter 329.
"Employee" means an employee of the State including all permanent employees of the executive, judicial, and legislative branches. The term also includes legislative session staff.
"Employee assistance program" means agency-based counseling programs that offer assessment, short-term counseling, and referral services to employees for a wide range of drug, alcohol, and mental health problems that affect employee job performance. Employee assistance programs are responsible for referring drug-using employees for rehabilitation and for monitoring employees' progress while in treatment.
"Employee in a sensitive position" means:
(1) Appointees serving at the pleasure of the governor or whose appointment requires the consent of the senate;
(2) All elected officials;
(3) Law enforcement officers;
(4) Other positions that the governor, president of the senate, speaker of the house of representatives, or chief justice determines involve law enforcement, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence; and
(5) High level management personnel of the executive, judicial, and legislative branches including directors, deputies, division heads, supervisors, branch chiefs, officers, administrators, chief clerks, and sergeants-at-arm.
§ -2 Drug-free workplace. The governor, the president of the senate and the speaker of the house of representatives, and the chief justice shall implement a program in their respective branches of state government to establish a drug-free workplace for all state employees. This program shall have as its core policy the following:
(1) State employees are required to refrain from the use of illegal drugs;
(2) The use of illegal drugs by state employees, whether on duty or off duty, is contrary to the efficiency of government; and
(3) Persons who use illegal drugs are not suitable for state employment.
§ -3 Plan. The governor, the president of the senate and the speaker of the house of representatives, and the chief justice shall develop a plan for their respective branches to achieve the objective of a drug-free workplace with due consideration of the rights of public employees and the general public. The plan shall include:
(1) A statement of policy setting forth the State's expectations regarding drug use and the action to be anticipated in response to identified drug use;
(2) Employee assistance programs emphasizing high-level direction, education, counseling, referral to rehabilitation, and coordination with available community resources;
(3) Supervisory training to assist in identifying and addressing illegal drug use by state employees;
(4) Provision for self-referrals as well as supervisory referrals to treatment with maximum respect for individual confidentiality consistent with safety and security issues; and
(5) Provision for identifying illegal drug uses, including testing on a controlled and carefully monitored basis in accordance with this chapter.
§ -4 Drug testing programs. (a) The governor, the president of the senate and the speaker of the house of representatives, and the chief justice shall establish a program in their respective branches to test for the use of illegal drugs by employees in sensitive positions. The extent to which those employees are tested and the criteria for the testing shall be determined according to agency and job position by the respective heads of each executive, legislative, or judicial branch, based upon the nature of each agency's mission and its employees' duties, the efficient use of branch resources, and the danger to the public health and safety that could result from the failure of an employee adequately to peform the requirements of the employee's position.
(b) The governor, the president of the senate and the speaker of the house of representatives, and the chief justice shall establish a program for their respective branches for voluntary employee drug testing.
(c) In addition to the testing authorized in subsections (a) and (b), the head of each executive, legislative, and judicial agency may authorize the testing of an employee for illegal drug use under the following circumstances:
(1) When there is reasonable suspicion that any employee uses illegal drugs;
(2) In an examination authorized by an accident or unsafe practice;
(3) As part of or as a follow-up to rehabilitation for illegal drug employee assistance program.
(d) The head of each executive, legislative, and judicial agency may test any applicant for illegal drug use.
§ -5 Drug testing procedures. (a) Sixty days prior to the implementation of a drug testing program pursuant to this chapter, an agency shall notify its employees that testing for use of illegal drugs is to be conducted and that they may seek counseling and rehabilitation, and shall inform them of the procedures for obtaining such assistance through the branch's employee assistance program. Ongoing drug testing programs are exempted from the sixty-day notice requirement. Agencies may take action under section -4(c) without reference to the sixty-day notice period.
(b) Before conducting a drug test, the agency shall inform the employee to be tested of the opportunity to submit medical documentation that may support a legitimate use for a specific drug.
(c) Drug testing programs shall contain procedures for timely submission of requests for retention of records and specimens; procedures for re-testing; and procedures, consistent with applicable law, to protect the confidentiality of test results and related medical and rehabilitation records. Procedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided.
(d) The department of health is authorized to promulgate scientific and technical guidelines for drug testing programs, and the branches and agencies may conduct their drug testing programs in accordance with these guidelines once promulgated.
(e) In the event of any conflict between this chapter and chapter 329B, chapter 329B shall control.
§ -6 Personnel actions. (a) Agencies, in addition to any appropriate personnel actions, shall refer any employee who is found to use illegal drugs to an employee assistance program for assessment, counseling, and referral for treatment or rehabilitation as appropriate.
(b) Agencies shall initiate action to discipline any employee who is found to use illegal drugs; provided that action is not required for employees who:
(1) Voluntarily identify themselves as users of illegal drugs or who volunteer for drug testing pursuant to section -4(b), prior to being identified through other means;
(2) Obtain counseling or rehabilitation through an employee assistance program; and
(3) Thereafter refrain from using illegal drugs, prior to successful completion of rehabilitation through an employee assistance program. However, as part of a rehabilitation or counseling program, the head of an executive, legislative, or judicial agency may allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to the public health or safety.
(c) Agencies shall initiate action to remove from employment any employee who is found to use illegal drugs and:
(1) Refuses to obtain counseling or rehabilitation through an employee assistance program; or
(2) Does not thereafter refrain from using illegal drugs.
(d) The results of a drug test and information developed by the agency in the course of the drug testing of the employee may be considered in processing any adverse action against the employee or for other administrative purposes. Preliminary test results may not be used in an administrative proceeding unless they are confirmed by a second analysis of the same sample or unless the employee confirms the accuracy of the initial test by admitting the use of illegal drugs.
(e) The determination by an agency that an employee uses illegal drugs can be made on the basis of any appropriate evidence, including direct observation, a criminal conviction, administrative inquiry, or the results of an authorized testing program. Positive drug test results may be rebutted by other evidence that an employee has not used illegal drugs.
(f) Any action to discipline an employee who is using illegal drugs, including the removal from employment, if appropriate, shall be taken in compliance with existing law.
(g) Drug testing shall not be conducted pursuant to this chapter for the purpose of gathering evidence for use in criminal proceedings. Agencies are not required to report to any law enforcement agency for investigation or prosecution in any information, allegation, or evidence in relation to violations of any state or federal controlled substance law received as a result of the operation of drug testing programs established pursuant to this chapter.
§ -7 Coordination of agency programs. The governor shall:
(1) Issue government-wide guidance to agencies in the executive, legislative, and judicial branches of government on the implementation of the terms of this chapter;
(2) Ensure that appropriate coverage for drug abuse is maintained for state employees and their families under any current state employees health benefits program; and
(3) Develop a model employee assistance program for state agencies and assist the branches and their agencies in putting programs in place."
SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2003-2004, and the same sum, or so much thereof as may be necessary for fiscal year 2004-2005, for the state employee drug-free workplace program.
SECTION 4. The sums appropriated shall be expended for the purposes of this Act as follows:
1. $ by the office of the governor;
2. $ by the president of the senate;
3. $ by the speaker of the house of
4. $ by the judiciary.
SECTION 5. This Act shall take effect on July 1, 2003.