Employee drug testing-vulnerable adults.

WORKING DRAFT
2014
STATE OF
WYOMING
14LSO-0196

HOUSE BILL
NO.

HB0120

Employee drug testing
-vulnerable adults.

Sponsored by:
Representative(s) Harvey, Filer and Larsen and Senator(s) Dockstader and Peterson

A BILL

for

AN ACT relating to public employees; providing for random drug testing of state employees holding specified positions; providing for testing of new employees; specifying certain procedures and minimum requirements; authorizing policies; providing for disciplinary action;
providing for self-reporting of controlled substance use;
providing for confidentiality;
requiring a report;
providing an appropriation; and providing for effective date
s
.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 9
‑
13
‑
201 through 9
‑
13
‑
20
6

are
created to read:

ARTICLE 2
CONTROLLED SUBSTANCE TESTING

9
‑
13
‑
201.

Definitions.

(a)

As used in this article, unless the context clearly indicates otherwise:

(
i
)

"Controlled substance" means as defined in W.S. 35
‑
7
‑
1002(
a)(iv);

(ii)

"Department" means the department of administration and information acting through the human resources division;

(iii)

"Drug testing" means testing for the presence of controlled substances pursuant to this article;

(iv)

"Employee" mean
s a state employee

who w
ork
s
at
a
state institution
and who
:

(A)

I
n the course of regular employment duties, is in contact with children or vulnerable adults
;
or

(B)

Who
se terms of employment
require

a commercial driver
'
s license
pursuant to W.S. 31
‑
7
‑
304(a)(
i
)
and who operates a bus as defined in W.S. 31
‑
7
‑
102(a)(i
ii
) or mobile machinery as defined in W.S. 31
‑
18
‑
203(a)(
i
).

(v)

"Established drug test" means the collection and testing of specimens administered in a manner equivalent to that required by the federal department of health and human services' mandatory guidelines for federal workplace drug testing programs, or other professionally valid procedures approved by the department;

(vi)

"Potential employee" means any employee hired by a state agency after July 1, 2015
who, if hired, would be an employee
;

(vii)

"Specimen" means a tissue, hair or product of the human body capable of revealing the presence of controlled substances or their metabolites;

(viii)

"State institution" means any institution in title 25 under the direct authority and control of the department of health
or the department of family services
;

(
ix
)

"Vulnerable adult" means as defined in W.S. 35
‑
20
‑
102(
a)(xviii).

9
‑
13
‑
202.

Employees subject to random testing for unlawful use of controlled substances.

(a)

Employees as defined in W.S. 9
‑
13
‑
201(
a)(iv) shall be subject to random testing for evidence of unlawful use of controlled substances
.
Potential employees shall be subject to the same type of test prior to employment, but shall not be subject to random testing unless they are an employee as defined in W.S. 9
‑
13
‑
201(
a)(iv)
.
The testing shall be conducted immediately before, during or after the regular work period of the employee and shall be deemed to be performed during the work time for purposes of determining compensation or benefits for the employee.

(b)

For employees subject to random drug testing the department shall adopt a policy to establish:

(
i
)

The portion of employees that may be selected at random for testing at each testing period
.
The department may vary the portion of employees selected from
any employee group in order to meet minimum federal requirements for specific employee groups;

(ii)

Methods for assuring that employees are selected for testing on a random basis;

(iii)

Methods for assuring that privacy intrusions are minimized during collection of specimens;

(iv)

Methods for assuring that any specimens are stored and transported to testing laboratories at proper temperatures and under such conditions that the quality of the specimens shall not be jeopardized;

(v)

Procedures and forms for an employee to provide any information he considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information
.
The forms shall provide notice of the most common medications by brand name
,
common name
or
chemical name which may alter or affect the test
.
The providing of information shall
be prior to
administration of the test
;

(vi)

Methods
for confirmatory tests and an employee's contest of a test;

(vii)

Methods for assuring that the identity of employees whose tests show the usage of a controlled substance is limited to the employee's agency head and department staff who are entitled to this information
.
The policies shall provide for the identification of those persons entitled to the information;

(viii)

Disciplinary action in accordance with personnel rules of the department;

(ix)

Such other policies as the department may deem appropriate to carry out the purposes of this article.

(c)

The department shall establish a general policy applicable to all potential employees, establishing procedures and methods specified in paragraphs (b)(iii) through (vii) and (ix) of this section.

(d)

All state agencies employing persons subject to testing under this article shall provide written policy statements to
the
employees and applicants for any position
to be filled after July 1, 20
15
.
The statements shall be in a form approved by the department and shall identify:

(
i
)

The types of testing that may be required;

(ii)

Disciplinary action which may result from a positive test;

(iii)

A general statement concerning confidentiality;

(iv)

A
listing of common medications by brand
name,
common name
or
chemical name which may affect the results of a test; and

(v)

The consequences of refusing a test.

(e)

The department shall establish and maintain a list of those laboratories qualified to conduct established drug tests and shall determine which controlled substances will be the subject of testing.

(f)

Any employee subject to this article who is required by federal law to undergo more frequent testing
for controlled substances or other substances shall be required to meet those federal requirements
.
In adopting policies for testing under this article the department shall accommodate such federal testing requirements for those employees.

9
‑
13
‑
203.

Confirmatory tests; test costs; retention of specimens.

(a)

If the results of a test indicate the presence of a controlled substance, the employee or potential employee shall be notified by the employer within seventy-two (72) hours after receipt of a positive test result from the testing laboratory
.
The employer shall provide
a copy of the test results
upon the employee's or potential employee's request
.
Upon informing the employee or potential employee of the test results, the employer shall inform the employee of the proposed disciplinary action, or if a potential employee that he will not be hired, of his right to submit documentation establishing that the substance was used pursuant to a valid medical prescription or was lawfully used as otherwise authorized by state or federal law and of his right to request a confirmatory test
.
An employee or potential employee shall have
seventy-two (72) hours after receipt of notice of a positive test to submit the documentation and to have a new specimen submitted for confirmation at another laboratory listed pursuant to W.S. 9
‑
13
‑
202(
d), chosen by the employee or potential employee
.
The second laboratory must test at equal or greater sensitivity for the controlled substance in question as the first laboratory
.
The confirmatory test shall use gas chromatography/mass spectrometry or an equivalent or more accurately accepted method.

(b)

Within five (5) working days after receipt of a confirmed positive test, the employer shall notify the employee or potential employee
.
The employer shall include with this notice its determination as to whether the explanation or challenge of the positive test results is satisfactory to the employer
.
If the explanation or challenge is unsatisfactory
,
the employer shall notify the employee or potential employee
of that fact and
provide a copy of the confirmed positive test results, together with the proposed disciplinary action or decision not to hire, as applicable
.
A permanent employee, as defined by rule of the department, shall also be notified of his right to institute an administrative challenge to the test result and proposed disciplinary action.

(c)

Any employee or potential employee who refuses to provide a specimen, when requested to do so in accordance with the random drug testing conducted pursuant to this article and policies adopted under this article, shall have the test recorded as a positive test for the unlawful use of controlled substances
.
The employee or potential employee shall be notified at the time of his refusal that the refusal shall be treated as a positive result and shall subject the employee to disciplinary action or decision not to hire, as applicable.

(d)

Every specimen
which
produces a positive result shall be preserved by the laboratory that conducted the initial test until receipt of notification from the department that the initial test will not be subject to confirmation and the specimen no longer needs to be preserved
.
The laboratory conducting a confirmation test which produces a positive result shall preserve the specimen for thirty (30) days after the time to institute an administrative or legal challenge to the test result has lapsed
.
If an administrative or legal challenge to the test results is taken, the confirmatory test specimen shall be preserved until the matter is finally resolved.

(e)

Costs of the initial and confirmatory testing under this article shall be paid from public funds by the employing state agency
.
Costs of testing beyond the initial and confirmatory test shall be borne by the employee or potential employee.

9
‑
13
‑
204.

Disciplinary action; review.

(a)

Any employee found to have a positive test result, including employees refusing to provide a specimen for testing, shall be subject to disciplinary action
.
Any potential employee found to have a positive test result, including potential employees refusing to provide a specimen for testing, shall not be hired.

(b)

An employee who has submitted documentation to explain a positive test result or who has submitted a new specimen for confirmation shall be placed in a position which is not high risk or, if such a position is not available, on leave status with pay pending the confirmatory test
.
Disciplinary action shall be imposed upon notification to the employee of the employer's receipt
of a confirmed positive test and that any explanation or challenge has been determined to be unsatisfactory.

(c)

Disciplinary actions pursuant to this article shall be taken in accordance with personnel rules of the department
.
A permanent employee subject to discipline pursuant to this article may institute administrative proceedings and subsequent legal review regarding the test results and proposed discipline in accordance with grievance procedures established by rule of the department.

(d)

For purposes of this section, a positive initial test and a positive confirmatory test shall be considered as one (1) positive test
.
A positive initial test shall be considered as one (1) positive test if an employee does not submit a second specimen for a confirmatory test.

9
‑
13
‑
205.

Employee
's voluntary
admission of controlled substances use.

(a)

An e
mployee who admit
s
to misuse
of
controlled substances
is
not subject to
discipline pursuant to W.S. 9
‑
13
‑
204
provided that:

(
i
)

The admission is in accordance with a self-identification program or policy that meets the requirements of
subsection
(b) of this section;

(ii
)

The
employee
does not self-identify in order to avoid testing under the requirements of this
article
;

(iii
)

The
employee
makes the admission of controlled substance use prior to perform
ing a safety sensitive function
; and

(
iv
)

The
employee
does not perform a safety sensitive function until the employer is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.

(b)

A qualified voluntary self-identification program or policy
shall
:

(
i
)

P
rohibit the employer from taking adverse action against an employee making a voluntary admission of
controlled substance use within the parameters of the program or policy and
subsection
(a) of this section;

(
ii
)

A
llow the employee sufficient opportunity to seek evaluation, education or treatment to establish control over the employee's drug problem;

(
iii
)

P
ermit the employee to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a
qualified
drug counselor;

(
iv
)

Require that, p
rior to the employee
returning to duty
, the employee shall undergo a controlled substance test with a verified negative test result for controlled substances use; and

(
v
)

I
ncorporate employee monitoring and follow-up testing
as appropriate
.

9
‑
13
‑
20
6
.

Confidentiality.

(a)

Test results and all other information regarding individual employees or potential employees which is
received or produced pursuant to this article shall remain confidential in accordance with W.S. 16
‑
4
‑
203(
d)(iii) and shall not be made publicly available unless necessary for the administration of this article or otherwise mandated by other state or federal law.

(b)

All notices required to be provided by a state agency, employee or potential employee under this article shall be provided in writing.

Section 2.

W.S. 9
‑
2
‑
1022(
a) by creating a new paragraph (xv) and 16
‑
4
‑
203(d)(iii) are amended to read:

9
‑
2
‑
1022.

Duties of department performed through human resources division.

(a)

Subject to subsection (b) of this section, the department through the human resources division shall:

(xv)

Perform all duties of the department required by W.S. 9
‑
13
‑
201 through 9
‑
13
‑
20
6
.

16
‑
4
‑
203.

Right of inspection; grounds for denial; access of news media; order permitting or restricting disclosure.

(d)

The custodian shall deny the right of inspection of the following records, unless otherwise provided by law:

(iii)

Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest
.
Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work
.
Drug testing results and other information produced or received pursuant to W.S. 9
‑
13
‑
201 through 9
‑
13
‑
20
6
, shall be available only to the person in interest, the department of administration and information staff administering the provisions of W.S. 9
‑
13
‑
201 through 9
‑
13
‑
20
6
, and to the director of the department or, if a separate operating agency, the agency head, employing the person.
E
mployment contracts, working agreements or other documents setting forth the terms and conditions of employment of public officials and employees are not
considered part of a personnel file and shall be available for public inspection;

Section 3.

The department of administration and information and each state agency subject to the provisions of this act shall adopt policies to implement the provisions of this act no later than July 1, 20
15
.

Section 4.

There is appropriated from the general fund to the department of administration and information one hundred thousand dollars ($10
0
,000.00), or as much thereof as is necessary,
and one (1) at-will contract employee is authorized to the department,
for purposes of this act.

Section 5.

(a)

The department of administration and information shall report to the joint labor, health and social services interim committee by October 1, 2015, regarding the department's rules adopted to implement the drug testing program created by W.S. 9
‑
13
‑
201 through 9
‑
13
‑
206.

(b)

The d
epartment of administration and information shall report to the joint labor, health and social services interim committee by October 1, 2016, regarding the number of drug tests administered pursuant to W.S. 9
‑
13
‑
201 through 9
‑
13
‑
206, the number of positive drug tests and the number of employees voluntarily reporting pursuant to W.S. 9
‑
13
‑
205. The information provided shall be in the aggregate without any personally identifying information
.

Section 6.

(a)

Section 3 of this act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

(b)

Except as provided under subsection (a) of this section, this act is effective July 1, 201
4
.

(END)

1
HB0120