Report Title:

Drug-Free Workplace

 

Description:

Establishes a zero-tolerance policy for the use of controlled substances in government employment. Authorizes mandatory drug testing for new hires. Authorizes random drug testing for active employees.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

957

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO GOVERNMENT EMPLOYEES.

 

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

SECTION 1. The legislature finds that drug abuse is a serious statewide problem. Individuals may exhibit little or no signs of drug abuse but are nevertheless dangerous to themselves, their co-workers, and the public. Drug-using public employees in safety-sensitive positions in the executive branches of the State and the several counties and the judiciary pose a particular risk to the safety to the public.

Even if they can function in routine activities, public employees who use controlled substances are impaired and may be unreliable in times of crisis. Drug abusers should not be:

(1) Given access to guns because of the attendant potential for violence;

(2) Allowed access to prisoners due to the possibility of exacerbating any existing drug problem in the prison;

(3) Permitted access to controlled substances, which provide the inevitable opportunity to succumb to the temptation;

(4) Entrusted with commercial motor vehicles because of the potential to cause accidents, injury, and loss of life;

(5) Given positions the public must rely upon for judgment and integrity; and

(6) Provided with positions involving highly sensitive information.

Accordingly, the purpose of this Act is to ensure that users of controlled substances do not hold positions in government by:

(1) Terminating all public employees who use drugs during the period of employment;

(2) Requiring all new hires to demonstrate their suitability for public employment by passing a pre-employment drug test, if required by the employing jurisdiction, and to have no record of a prior conviction for a controlled substance-related conviction within the preceding five-year period; and

(3) Mandating random drug testing for all public employees whose jobs require unimpeachable integrity and judgment, enhance public safety, affect the care of human life, require unimpaired performance to avoid risk to the health or safety of the public, or involve the custody and maintenance of truly sensitive information.

It is the intent of the legislature that this Act be interpreted in a manner that best protects the aforementioned compelling governmental interests.

SECTION 2. Chapter 76, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . DRUG-FREE WORKFORCE

§76-    Definitions. For purposes of this part:

"Controlled substance" means a drug, substance, or immediate precursor in schedules I through V of chapter 329, part II.

"During the period of employment" means the start date of employment until the date of separation and includes off-duty hours, holidays, and weekends.

"Safety-sensitive positions" means positions that require unimpeachable integrity and judgment, enhance public safety, affect the care of human life, require unimpaired performance to avoid risk to the health and safety of the public, or involve the custody and maintenance of truly sensitive information, including but not limited to the following categories:

(1) Positions requiring the ability to carry firearms, including police officers, adult corrections officers, harbor patrol officers, department of land and natural resources patrols, investigators for the department of the attorney general, the prosecuting attorney and the department of public safety, state law enforcement officers, sheriffs, and any other positions authorized to carry firearms;

(2) Positions located in an adult correctional facility or youth correction facility, including social workers, medical personnel, education, kitchen, office, and work-line staff, treatment providers, and counselors, and supervisors of these positions;

(3) Positions authorized to administer controlled substances, including doctors, nurses, emergency medical technicians, and physician assistants;

(4) Positions requiring a commercial driver's license;

(5) Positions requiring unimpaired performance to avoid risk to the health or safety of the public, including drivers of passenger-carrying vehicles or equipment vehicles;

(6) Lifeguards, water safety officers, firefighters, and other positions involved in life-saving activities, responding to emergencies, or rescue operations;

(7) Positions with responsibility for the security of government buildings;

(8) Positions requiring unimpeachable integrity and judgment, including deputy attorneys general, deputy corporation counsel, and deputy prosecuting attorneys, but excluding members of the judiciary; and

(9) Positions that involve the custody and maintenance of truly sensitive information including public employees who must have a military security clearance to perform their jobs.

§76-    Safety-sensitive positions; mandatory drug testing and zero tolerance. (a) To implement this part, each director shall:

(1) Identify all safety-sensitive positions within its jurisdiction, consistent with the purpose of this part, that shall be subject to mandatory random controlled substance testing; and

(2) Establish a written policy setting forth the manner in which individuals are chosen to be tested, the type of test to be given, and the consequences of a positive controlled-substance test, including adverse actions, additional testing, counseling and treatment, and any other requirements.

(b) All public employees in safety-sensitive positions in the jurisdiction shall be required to undergo mandatory random controlled-substance testing pursuant to the director's written policy.

(c) There shall be a rebuttable presumption that a public employee testing positive for a controlled substance during the period of employment was in fact using controlled substances during the period of employment.

(d) Any conviction for a controlled substance-related offense that occurred during the period of employment shall establish an irrebuttable presumption that the public employee was in fact using controlled substances during the period of employment.

(e) Any public employee covered by this section who makes unauthorized use of controlled substances once during the period of employment shall be immediately terminated and shall be ineligible for public employment for not less than five years thereafter.

(f) Any adverse action taken against an employee for using controlled substances may be appealed in accordance with this chapter.

(g) An exclusive representative may negotiate procedures on maintaining a drug-free workforce that apply to safety-sensitive employees within its bargaining unit; provided that any procedures negotiated shall be consistent with the provisions of this part and shall not interfere with the responsibilities of the director under subsection (a). Provisions of a collective bargaining agreement that are inconsistent with this part shall be invalid and unenforceable and shall be repealed or amended in conformance with this part.

§76-    Prospective employees; suitability for public employment. (a) All prospective employees, regardless of the positions they will assume, may be required to demonstrate their suitability for public employment by:

(1) Passing a pre-employment controlled-substance drug test if required by the employing jurisdiction; and

(2) Attesting that during the five-year period immediately preceding the date of application for employment, the person was not convicted of any controlled substance-related offense.

(b) Failure to meet any of the requirements of subsection (a) shall result in a determination of unsuitability and the person may thereby be deemed ineligible for appointment under this chapter.

§76-    Mandatory termination for conviction. (a) All public employees, regardless of the positions they occupy, shall be subject during the period of employment to a determination of unsuitability resulting in immediate termination if they are convicted for a controlled substance-related offense.

(b) Each director shall adopt rules necessary to implement this section."

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 provisions or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________