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. (HB957 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

957

TWENTY-SECOND LEGISLATURE, 2003

H.D. 1

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 the executive, judicial, and legislative branches of the State, including the department of education, the University of Hawaii, the Hawaii health systems corporation, and the executive and legislative branches of the several counties 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 unable to be fully productive in the workplace.

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

(1) Authorizing the employer to terminate 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.

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 other than alcohol such as marijuana, cocaine, opiates, amphetamines, and phencyclidine.

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

§76-    Mandatory drug testing and zero tolerance. (a) To implement this part, each director shall 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 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-    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. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78-      Drug-free workforce; applicability. Part of chapter 76 shall not apply to persons who are covered by any substance abuse testing rules or regulations adopted by the 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."

SECTION 4. Section 78-2.6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§78-2.6[]] Prospective employees; suitability for public employment. All prospective employees, regardless of the positions they will assume, shall 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 [three-year] five-year period immediately preceding the date of application for employment, the person was not convicted of any controlled substance-related offense.

If an applicant fails to meet the suitability requirements of the employing jurisdiction, the applicant shall be disqualified from further employment consideration or deemed ineligible for appointment under section 76-29 on the basis of unsuitability for public employment."

SECTION 5. Section 378-2.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) [Inquiry] Except as otherwise provided in chapter 76, part , inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position."

SECTION 6. Section 831-3, Hawaii Revised Statutes, is amended to read as follows:

"§831-3 Rights retained by convicted person. Except as otherwise provided by this chapter, chapter 76, part , and chapter 351, part VI, and chapter a person convicted of a crime [does] shall not suffer civil death or corruption of blood or sustain loss of civil rights or forfeiture of estate or property, but retains all of the person's rights, political, personal, civil, and otherwise, including the right to hold public office or employment, to vote, to hold, receive, and transfer property, to enter into contracts, to sue and be sued, and to hold offices of private trust in accordance with law."

SECTION 7. Section 831-3.1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A person shall not be disqualified from public office or employment by the State or any of its political subdivisions or agencies except under chapter 76, part , or section 831-2(c), or be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a permit, license, registration, or certificate is required by the State or any of its political subdivisions or agencies, solely by reason of a prior conbviction of a crime; provided that with respect to liquor licenses, a person who has been convicted of a felony may be denied a liquor license by the liquor commission."

SECTION 8. 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 to develop and implement an ongoing drug testing program for both applicants and employees to ensure a drug-free workplace in the executive branch of the State.

The sum appropriated shall be expended by the department of human resources development for the purposes of this Act.

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. 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 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval; provided that section 8 shall take effect on July 1, 2003.