REPORT TITLE:
SUBSTANCE ABUSE; EMPLOYEE
POLICY


DESCRIPTION:
This bill sets forth a new drug testing policy for public
employees.  The procedures and standards are modeled after
certain collective bargaining contracts.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1823 
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE CONSISTENT SUBSTANCE ABUSE TESTING OF PUBLIC
   EMPLOYEES.
 


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

 1      SECTION 1. The Legislature finds that in the area of
 
 2 employee substance abuse testing and discipline, it is clearly
 
 3 the private sector whose policies reflect a less tolerant
 
 4 attitude towards this sickness.  Most private sector employers
 
 5 and unions have a substance abuse policy which is more stringent
 
 6 than the public sector.  The hampering of even one public
 
 7 employee due to substance abuse destroys the smooth operation of
 
 8 the public sector.  At a time when the public sector is
 
 9 struggling to be as efficient as possible, a substance abuse
 
10 policy that allows multiple "slaps on the wrist" is
 
11 unjustifiable.  
 
12      Ideally, we do not allow our children to indulge and
 
13 continue to indulge in substance abuse.  As parents, this is non-
 
14 negotiable.  The private sector does not allow its employees to
 
15 continue a pattern of substance abuse because it hampers
 
16 productivity and endangers the consumer.  The purpose of this
 
17 bill is to bring the  public sector into parity with the private
 
18 sector on this important issue. SECTION 2.  Title 7, Hawaii
 
19 Revised Statutes, is amended by adding a new chapter to be appropriately
 

 
Page 2                                                     1823 
 
                                     H.B. NO.           
 
                                                        
 
                                                        
 
 1 designated and to read as follows:
 
 2 
 
 3                           "CHAPTER    
 
 4                 COMPREHENSIVE DRUG TESTING POLICY
 
 5 
 
 6      §   -1.  Definitions.  As used in this chapter unless
 
 7 otherwise indicated by the context: 
 
 8      "Public employee" means an person employed by either the
 
 9 state, city, or counties.
 
10      §   -2.  Comprehensive substance abuse testing procedures.  
 
11           (a)  Public employees shall be tested for narcotic
 
12                consumption on an annual basis.
 
13                (1)  There shall be a uniform selection process
 
14                     for annual testing whereby one-quarter of the
 
15                     employees of every department shall be
 
16                     randomly selected for annual testing.  The
 
17                     selection process enacted shall be fair, with
 
18                     each employee within a department having an
 
19                     equal chance of being randomly selected in
 
20                     any given year.
 
21           (b)  Public employees may be tested if a supervisor has
 
22                a reasonable suspicion that an employee is under
 

 
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                                     H.B. NO.           
 
                                                        
 
                                                        
 
 1                the influence of alcohol or narcotics.
 
 2                (1)  Supervisors designated to determine whether
 
 3                     reasonable suspicion exists must receive at
 
 4                     least sixty minutes of training on alcohol
 
 5                     misuse and at least sixty minutes of training
 
 6                     on controlled substance use and indicators of
 
 7                     probable use and misuse.  Supervisors shall
 
 8                     undergo such training once every five years.
 
 9                (2)  Supervisors who have received training
 
10                     pursuant to §  -2(b)(1) may direct an
 
11                     employee to undergo testing for substance
 
12                     abuse when that supervisor has a reasonable
 
13                     suspicion that an employee is under the
 
14                     influence of alcohol or narcotics.
 
15                (3)  The supervisor making the determination to
 
16                     direct an employee to undergo testing for
 
17                     substance abuse shall not also conduct the
 
18                     substance abuse test.
 
19                (4)  The reasonable suspicion of a supervisor must
 
20                     be based on a specific, contemporaneous,
 
21                     articulable observation made by the
 
22                     supervisor making the the reasonable
 
23                     suspicion determination concerning the
 

 
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                                     H.B. NO.           
 
                                                        
 
                                                        
 
 1                     appearance, behavior, speech, or odor of the
 
 2                     employee.
 
 3                (5)  A written record of the observations leading
 
 4                     to the reasonable suspicion determination and
 
 5                     the diversion of an employee to substance
 
 6                     abuse testing shall be made and signed by the
 
 7                     supervisor within twenty four hours of the
 
 8                     observed behavior.  A copy of this
 
 9                     documentation shall be given to the employee.
 
10      §   -3.  In addition to the requirements of this chapter,
 
11 all public employers shall adopt drug testing mechanisms
 
12 consistent with federal law. 
 
13      §   -4.  Discipline.
 
14           (a)  First positive test result.  Upon determination of
 
15                a positive test result under -3, if the positive
 
16                test result is the first positive result on
 
17                record, the employee shall be suspended for a
 
18                period to be determined by the supervisor of the
 
19                department.  The employee shall also undergo
 
20                mandatory substance abuse treatment program and
 
21                successfully complete the program.
 
22           (b)  Second positive test result.  Upon determination
 
23                of a positive test result under -3, if the
 

 
Page 5                                                     1823 
 
                                     H.B. NO.           
 
                                                        
 
                                                        
 
 1                positive test result is the second positive result
 
 2                on record, the employee shall be terminated.
 
 3           (c)  Immediate termination.  An employee shall be
 
 4                immediately terminated if:
 
 5                (1)  the employee refuses to undergo mandatory
 
 6                     treatment under §   -4(a).
 
 7                (2)  the employee refuses to undergo drug testing
 
 8                     under §   -3."
 
 9      §   -5.  This chapter shall not affect any preexisting
 
10 collective bargaining agreements.  This chapter shall preempt any
 
11 legislation, county ordinance, executive orders, rules or
 
12 regulations adopted by the State, or agreement to the contrary,
 
13 and this chapter shall take precedence over all conflicting
 
14 statutes, county ordinances, executive orders, rules or
 
15 regulations adopted by the State, or agreements regarding this
 
16 subject matter.
 
17      SECTION 3.  Section 89-19, Hawaii Revised Statutes, is
 
18 repealed.
 
19      [§89-19  Chapter takes precedence, when.  This chapter shall
 
20 take precedence over all conflicting statutes concerning this
 
21 subject matter and shall preempt all contrary local ordinances,
 
22 executive orders, legislation, or rules adopted by the State, a
 
23 county, or any department or agency thereof, including the
 
24 departments of human resources development or of personnel
 
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                                     H.B. NO.           
 
                                                        
 
                                                        
 
 1 services or the civil service commission.]
 
 2      SECTION 4.  If any provision of this Act, or the application
 
 3 thereof to any person or circumstance is held invalid, the
 
 4 invalidity does not affect other provisions or applications of
 
 5 the Act which can be given effect without the invalid provision
 
 6 or application, and to this end the provisions of this Act are
 
 7 severable.
 
 8      SECTION 5.  Statutory material to be repealed is bracketed.
 
 9      SECTION 6.  This Act shall take effect on July 1, 2000.
 
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11                           INTRODUCED BY:  _______________________
 
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