Report Title:

Civil Service Reform; Substance Abuse Testing

 

Description:

Implements a new program of drug testing for public safety- sensitive positions. Requires that prospective employees for safety-sensitive positions be subject to substance abuse testing. Authorizes the Hawaii Labor Relations Board to review appeals of employer-related substance abuse testing decisions. Excludes drug testing, drug testing procedures, and positive drug testing sanctions from collective bargaining negotiations.

 

THE SENATE

S.B. NO.

696

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to civil service reform.

 

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

SECTION 1. The legislature finds that 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. However, it is also the public policy of the State of Hawaii that all public employees 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 Act is to ensure and enhance the quality of public service and to secure public trust and confidence through the adoption of a program for substance abuse screening and testing in order to eliminate substance abuse in the workplace among employees in public safety-sensitive positions.

SECTION 2. Chapter 78, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . drug testing for

public safety-sensitive positions

§78-A Applicability. This part shall not apply to 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.

§78-B Definitions. As used in this chapter:

"Applicant" means a person seeking employment with the State of Hawaii or any political subdivision of the State.

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

"Board" means the Hawaii labor relations board.

"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, part II.

"Employee" means any person who performs services for compensation for either the State of Hawaii or any political subdivision of the State, but shall not include an independent contractor.

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

"Positive test result" means a finding through substance abuse testing of the presence of drugs or the metabolites of drugs in the sample tested in the levels at or above the cutoff levels as established under chapter 329B or any rule adopted thereunder.

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

"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 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 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, 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

(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 a drug test that uses a method of analysis determined to be reliable as provided in chapter 329B or any rule adopted thereunder in establishing the identity and quantity of drugs or metabolites of drugs detected in an initial screening test.

§78-C Determination of safety-sensitive position. Upon the filing of a request by an employer, employee, applicant, 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.

§78-D Testing; when permitted. (a) An employer shall require an applicant, appointee or employee in a safety-sensitive position 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 or employee, on a random selection basis, is given adequate notice, as required under section 78-F, and is asked to submit to a substance abuse test;

(3) The employer has reasonable cause to believe that the appointee or employee is under the influence of drugs;

(4) The appointee or employee 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 or employee having been under the influence of drugs; or

(5) The appointee or employee 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.

(b) A substance abuse test under subsection (a) shall meet the following requirements:

(1) The testing is undertaken pursuant to a written substance abuse testing policy that complies with section 78-F;

(2) The testing complies with the procedures in section 78-G;

(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.

§78-E 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 or any rule adopted thereunder.

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

(1) Provide a copy of its substance abuse testing policy to each appointee or employee in a safety-sensitive position on the date of employment 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 appointee or employee in a safety-sensitive position 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.

§78-G 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.

§78-H 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 78-D (a)(3) or (4) may 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.

§78-I Retest; request by person tested. Any person required to submit to a test under this part that 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.

§78-J Disclosure of test results; confidentiality. Any information concerning a substance abuse test pursuant to this part shall be confidential. The information shall not be released 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 part shall be subject to the same obligation of confidentiality as the party from whom the information was received.

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

§78-L Disciplinary actions against employees. (a) An employer shall not discharge, discipline, discriminate against, or request or require rehabilitation of a person for suspicion of being under the influence of drugs prior to the receipt of a positive test result. An employee under chapter 76 shall be subject to section 76-45 if the employee tests positive for a drug identified in chapter 329, part II.

(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 part.

(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 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 part unless the person was under an affirmative duty to provide that information before, upon, or after hire.

§78-M Federal preemption. This part 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.

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

§78-O Appeals; employer sanctions. (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.

(b) 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 this part 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."

SECTION 3. 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] provided that a prospective employee for a safety-sensitive position shall be subject to part;

(2) Attesting that during the three-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 4. Section 89-5, Hawaii Revised Statutes, is amended by amending subsection (i) 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 or arbitrators;

(7) Establish a fair and reasonable range of daily or hourly rates at which mediators 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 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 part of chapter 78."

SECTION 5. Section 89-9, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii public employees health fund, recruitment, examination, initial pricing, drug testing, procedures for drug testing, sanctions for positive drug test results, and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative shall not agree to any proposal which would be inconsistent with the merit principle or the principle of equal pay for equal work pursuant to section 76-1 or which would interfere with the rights and obligations of a public employer to:

(1) Direct employees;

(2) Determine qualifications, standards for work, the nature and contents of examinations;

(3) Hire, promote, transfer, assign, and retain employees in positions;

(4) Suspend, demote, discharge, or take other disciplinary action against employees for proper cause;

(5) Relieve an employee from duties because of lack of work or other legitimate reason;

(6) Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations;

(7) Determine methods, means, and personnel by which the employer's operations are to be conducted; and

(8) Take such actions as may be necessary to carry out the missions of the employer in cases of emergencies.

The employer and the exclusive representative may negotiate procedures governing the promotion and transfer of employees to positions within a bargaining unit; the suspension, demotion, discharge, or other disciplinary actions taken against employees within the bargaining unit; and the layoff of employees within the bargaining unit. Violations of the procedures so negotiated may be subject to the grievance procedure in the collective bargaining agreement."

SECTION 6. 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 7. 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 8. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________