REPORT TITLE: 
State employee drug testing
DESCRIPTION:
Creates a drug-free workplace program for state employees.

 
HB HMIA 99-276
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.443        
TWENTIETHTH LEGISLATURE, 1999                              
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO STATE EMPLOYEES.



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


 1      SECTION 1.  This Act requires each state, executive, and
 
 2 legislative agency to implement a drug-free workplace program.
 
 3 The Act would require each appropriate agency to drug test
 
 4 employees in safety-related jobs, and would allow testing of all
 
 5 applicants, employees for whom reasonable suspicion of drug use
 
 6 exists, employees who have passed through a drug treatment
 
 7 program, and as part of a routine employee physical examination.
 
 8      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
 9 a new chapter to be appropriately designated and to read as
 
10 follows:
 
11                             "CHAPTER
 
12              STATE EMPLOYEE DRUG-FREE WORKPLACE ACT
 
13      §   -1  Definitions.  As used in this chapter, unless the
 
14 context requires otherwise:
 
15      "Employee" means the employee of the state including, but
 
16 not limited to any and all permanent employees of the executive
 
17 and legislative branches, and legislative session staff.
 
18      "Employee in a sensitive position" means:
 

 
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 1           (1) appointees serving at the pleasure of the governor
 
 2           or whose appointment required confirmation by the
 
 3           legislature;
 
 4           (2) all elected officials;
 
 5           (3) law enforcement officers as they are defined by the
 
 6           Hawaii Revised Statutes;
 
 7           (4) other positions that the governor or agency head
 
 8           determines involve law enforcement, the protection of 
 
 9 life and property, public health or safety, or other functions
 
10 requiring a high degree of trust and confidence[.];
 
11           (5)  high level management personnel of the executive
 
12           and legislative branches including, but not limited to,
 
13           directors, deputies, division heads, supervisors,
 
14           branch chiefs, officers, administrators, chief clerks,
 
15           and sargeant-at-arms.
 
16      "Controlled substance" means a controlled substance listed
 
17 in chapter 329.
 
18      "Employee assistance program" means agency-based counseling
 
19 programs that offer assessment, short-term counseling, and
 
20 referral services to employees for a wide range of drug, alcohol,
 
21 and mental health problems that affect employee job performance.
 
22 Employee assistance programs are responsible for referring drug-
 

 
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 1 using employees for rehabilitation and for monitoring employees'
 
 2 progress while in treatment.
 
 3      §  -2  Drug-free workplace.  The governor shall implement a
 
 4 program establishing a drug-free workplace for all state
 
 5 employees.  Such a program shall have as its core policy the
 
 6 following:
 
 7           (A) State employees are required to refrain from the
 
 8           use of illegal drugs.
 
 9           (B) The use of illegal drugs by state employees,
 
10           whether on duty or off duty, is contrary to the
 
11           efficiency of government.
 
12           (C) Persons who use illegal drugs are not suitable for
 
13           state employment.
 
14      §  -3  Plan.  The governor shall develop a plan for
 
15 achieving the objective of a drug-free workplace with due
 
16 consideration of the rights of public employees and the general
 
17 public.  The plan shall include:
 
18           (A) A statement of policy setting forth the state's
 
19           expectations regarding drug use and the action to be
 
20           anticipated in response to identified drug use;
 
21           (B) Employee assistance programs emphasizing high-level
 
22           direction, education, counseling, referral to
 
23           rehabilitation, and coordination with available
 

 
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 1           community resources;
 
 2           (C) Supervisory training to assist in identifying and
 
 3           addressing illegal drug use by state employees;
 
 4           (D) Provision for self-referrals as well as supervisory
 
 5           referrals to treatment with maximum respect for
 
 6           individual confidentiality consistent with safety and
 
 7           security issues; and
 
 8           (E) Provision for identifying illegal drug uses,
 
 9           including testing on a controlled and carefully
 
10           monitored basis in accordance with this Act.
 
11      §  -4  Drug testing programs.  (a) The governor shall
 
12 establish a program to test for the use of illegal drugs by
 
13 employees in sensitive positions. The extent to which such
 
14 employees are tested and the criteria for such testing shall be
 
15 determined by the respective heads of each executive branch
 
16 agency, based upon the nature of the agency's mission and its
 
17 employees' duties, the efficient use of agency resources, and the
 
18 danger to the public health and safety that could result from the
 
19 failure of an employee adequately to discharge his or her
 
20 position.
 
21      (b) The governor shall establish a program for voluntary
 
22 employee drug testing.
 
23      (c) In addition to the testing authorized in subsections (a)
 

 
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 1 and (b) of this section, the head of each executive branch agency
 
 2 is authorized to test an employee for illegal drug use under the
 
 3 following circumstances:
 
 4           (1) when there is reasonable suspicion that any
 
 5           employee uses illegal drugs;
 
 6           (2) in an examination authorized by the agency
 
 7           regarding an accident or unsafe practice; or
 
 8           (3) as part of or as a follow-up to counseling or
 
 9           rehabilitation for illegal drug use through an employee
 
10           assistance program.
 
11      (d) The head of each executive branch agency is authorized
 
12 to test any applicant for illegal drug use.
 
13      §  -5  Drug testing procedures.  (a) Sixty days prior to
 
14 the implementation of a drug testing program pursuant to this
 
15 Act, agencies shall notify employees that testing for use of
 
16 illegal drugs is to be conducted and that they may seek
 
17 counseling and rehabilitation, and shall inform them of the
 
18 procedures for obtaining such assistance through the agency's
 
19 employee assistance program.  Agency drug testing programs
 
20 already ongoing are exempted from the sixty day notice
 
21 requirement.  Agencies may take action under section 4(c) of this
 
22 Act without reference to the sixty-day notice period.
 
23      (b) Before conducting a drug test, the agency shall inform
 

 
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 1 the employee to be tested of the opportunity to submit medical
 
 2 documentation that may support a legitimate use for a specific
 
 3 drug.
 
 4      (c) Drug testing programs shall contain procedures for
 
 5 timely submission of requests for retention of records and
 
 6 specimens; procedures for re-testing; and procedures, consistent
 
 7 with applicable law, to protect the confidentiality of test
 
 8 results and related medical and rehabilitation records.
 
 9 Procedures for providing urine specimens must allow individual
 
10 privacy, unless the agency has reason to believe that a
 
11 particular individual may alter or substitute the specimen to be
 
12 provided.
 
13      (d) The state department of health is authorized to
 
14 promulgate scientific and technical guidelines for drug testing
 
15 programs, and agencies shall conduct their drug testing programs
 
16 in accordance with these guidelines once promulgated.
 
17      §  -6  Personnel actions.  (a) Agencies shall, in addition
 
18 to any appropriate personnel actions, refer any employee who is
 
19 found to use illegal drugs to an employee assistance program for
 
20 assessment, counseling, and referral for treatment or
 
21 rehabilitation as appropriate.
 
22      (b) Agencies shall initiate action to discipline any
 
23 employee who is found to use illegal drugs, provided that such
 

 
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 1 action is not required for an employee who:
 
 2           (1) voluntarily identifies himself as a user of illegal
 
 3           drugs or who volunteers for drug testing pursuant to
 
 4           section 4(b) of this Act, prior to being identified
 
 5           through other means;
 
 6           (2) obtains counseling or rehabilitation through an
 
 7           employee assistance program; and
 
 8           (3) thereafter refrains from using illegal drugs, prior
 
 9           to successful completion of rehabilitation through an
 
10           employee assistance program.  However, as part of a
 
11           rehabilitation or counseling program, the head of an
 
12           executive branch agency may, at his or her discretion,
 
13           allow an employee to return to duty in a sensitive
 
14           position if it is determined that this action would not
 
15           pose a danger to public health or safety.
 
16      (c) Agencies shall initiate action to remove from employment
 
17 any employee who is found to use illegal drugs and:
 
18           (1) refuses to obtain counseling or rehabilitation
 
19           through an employee assistance program; or
 
20           (2) does not thereafter refrain from using illegal
 
21           drugs.
 
22      (d) The results of a drug test and information developed by
 
23 the agency in the course of the drug testing of the employee may
 

 
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 1 be considered in processing any adverse action against the
 
 2 employee or for other administrative purposes.  Preliminary test
 
 3 results may not be used in an administrative proceeding unless
 
 4 they are confirmed by a second analysis of the same sample or
 
 5 unless the employee confirms the accuracy of the initial test by
 
 6 admitting the use of illegal drugs.
 
 7      (e) The determination by an agency that an employee uses
 
 8 illegal drugs can be made on the basis of any appropriate
 
 9 evidence, including direct observation, a criminal conviction,
 
10 administrative inquiry, or the results of an authorized testing
 
11 program.  Positive drug test results may be rebutted by other
 
12 evidence that an employee has not used illegal drugs.
 
13      (f) Any action to discipline an employee who is using
 
14 illegal drugs (including the removal from employment, if
 
15 appropriate) shall be taken in compliance with existing law.
 
16      (g) Drug testing shall not be conducted pursuant to this Act
 
17 for the purpose of gathering evidence for use in criminal
 
18 proceedings.  Agencies are not required to report to any law
 
19 enforcement agency for investigation or prosecution in any
 
20 information, allegation, or evidence in relation to violations of
 
21 Title 21 of the United States Code or any other controlled
 
22 substance laws received as a result of the operation of drug
 
23 testing programs established pursuant to this Act.
 

 
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 1      §  -7  Coordination of agency programs.  The governor
 
 2 shall:
 
 3           (1) issue government-wide guidance to agencies on the
 
 4           implementation of the terms of this Act;
 
 5           (2) ensure that appropriate coverage for drug abuse is
 
 6           maintained for state employees and their families under
 
 7           any current state employees health benefits program;
 
 8           and 
 
 9           (3) develop a model employee assistance program for
 
10           state agencies and assist the agencies in putting
 
11           programs in place.
 
12      SECTION 3.  This Act shall take effect upon its approval.
 
13 
 
14 
 
15                         INTRODUCED BY:___________________________
 

 
HB HMIA 99-276