4. In the case of reasonable-suspicion testing, the employer must provide the
employee with documentation of the circumstances on which the reasonable
suspicion is based.
5. A test must be conducted immediately before, during, or immediately after
work and at the employer's expense, except that any retesting or additional testing
requested by the employee or applicant, but not required by the employer, is at the
expense of the employee or applicant, subject to reimbursement by the employer if
the result of the retest or additional test is negative. The bill also provides that if the
testing is conducted during an employee's regular work hours the employee shall be
paid for the time lost from work at the employee's regular rate of pay, plus benefits,
and if the testing is conducted outside of those hours the employee shall be paid for
the time necessary to take the test at the employee's regular rate of pay, excluding
benefits.
Similarly, the bill affords certain protections to an employer that is required to
conduct drug or alcohol testing under the bill. Specifically, under the bill:
1. An employee or applicant who has a verified positive test result is not
considered to be an individual with a disability for purposes of the law prohibiting
discrimination in employment on the basis of disability.
2. An employer is not prohibited from establishing and enforcing reasonable
work rules relating the use, possession, distribution, or delivery of drugs or alcohol
in the workplace.
3. A physician-patient relationship is not created between an employee or
applicant and the employer, a third-party administrator, a medical review officer, or
any other person conducting or evaluating a test under the bill.
Finally, the bill specifies that an employee or applicant who fails to submit to
testing as required under the bill or who is the subject of a verified positive test result
may not be permitted to work on a project of public works that is subject to the
prevailing wage law until the employee or applicant tests negative for the presence
of drugs or alcohol in his or her system and that an employee who is the subject of
more than one verified positive test result during the life of a project of public works
that is subject to the prevailing wage law may not work on the project for the life of
the project. An employer that permits an employee to work on a project of public
works that is subject to the prevailing wage law in violation of the bill is subject to
a fine of $200 or imprisonment for not more than six months or both for each day of
the violation and is subject to debarment from contracting with any state agency or
local governmental unit for three years from the date of the violation.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB682, s. 1
1Section
1. 16.855 (9m) of the statutes is created to read:
AB682,5,22
16.855
(9m) The department shall require a bidder for a contract to perform
3construction work on a project of public works that is subject to s. 103.49 to submit
4with the bid a statement that the bidder, and all subcontractors and agents that will
5be performing work on the project, have in place, or will have in place before any work
6on the project commences, a drug and alcohol testing program that complies with s.
1103.503. A statement specified under this subsection shall be submitted on a form
2that is adopted and furnished by the department of workforce development.
AB682, s. 2
3Section
2. 66.0901 (10) of the statutes is created to read:
AB682,5,114
66.0901
(10) Drug and alcohol testing requirements. A municipality shall
5require a bidder for a public contract that is subject to s. 66.0903 to submit with the
6bid a statement that the bidder, and all subcontractors and agents that will be
7performing work under the public contract, have in place, or will have in place before
8any work under the public contract commences, a drug and alcohol testing program
9that complies with s. 103.503. A statement specified under this subsection shall be
10submitted on a form that is adopted and furnished by the department of workforce
11development.
AB682, s. 3
12Section
3. 84.06 (2) (c) of the statutes is created to read:
AB682,5,2013
84.06
(2) (c) The department or an agent under par. (b) shall require a bidder
14for a contract to perform construction work on a project of highway improvements
15that is subject to s. 103.50 to submit with the bid a statement that the bidder, and
16all subcontractors and agents that will be performing work on the project, have in
17place, or will have in place before any work on the project commences, a drug and
18alcohol testing program that complies with s. 103.503. A statement specified under
19this paragraph shall be submitted on a form that is adopted and furnished by the
20department of workforce development.
AB682, s. 4
21Section
4. 103.503 of the statutes is created to read:
AB682,5,22
22103.503 Drug-free public works projects. (1) Definitions. In this section:
AB682,5,2323
(a) "Alcohol" has the meaning given in s. 340.01 (1q).
AB682,6,3
1(b) "Applicant" means a person who has applied for and been offered a position
2as an employee with an employer conditioned on successfully passing a test for the
3presence of drugs or alcohol in the person's system.
AB682,6,64
(c) "Certified laboratory" means a laboratory that is certified by the substance
5abuse and mental health services administration of the federal department of health
6and human services to engage in drug testing for federal agencies.
AB682,6,97
(d) "Confirmatory test" means a test by a gas chromatography/mass
8spectrometry testing procedure of a urine specimen conducted after an initial
9screening test.
AB682,6,1310
(e) "Confirmed positive test result" means a finding by a confirmatory test of
11the presence in the tested urine of any of the drugs or their metabolites specified in
12sub. (5) (a) to (e) at or above the minimum detection level specified in sub. (5) (a) 2.,
13(b) 2., (c) 2., (d) 2., or (e) 2.
AB682,6,1514
(f) "Drug" means any of the following that the department determines by rule
15promulgated under sub. (9) is subject to testing under this section:
AB682,6,1616
1. A controlled substance, as defined in s. 961.01 (4).
AB682,6,1717
2. A controlled substance analog, as defined in s. 961.01 (4m).
AB682,6,1818
3. A prescription drug, as defined in s. 450.01 (20).
AB682,6,2019
4. A drug, as defined in s. 450.01 (10), that may be dispensed without a
20prescription.
AB682,6,2321
(g) "Employee" means a laborer, worker, mechanic, or truck driver who
22performs the work described in s. 66.0903 (4), 103.49 (2m), or 103.50 (2m) on a project
23of public works that is subject to s. 66.0903, 103.49, or 103.50.
AB682,7,3
1(h) "Employer" means a contractor, subcontractor, or agent of a contractor or
2subcontractor that performs work on a project of public works that is subject to s.
366.0903, 103.49, or 103.50.
AB682,7,74
(i) "Initial positive test result" means a finding by an initial screening test of
5the presence in the tested urine of any of the drugs or their metabolites specified in
6sub. (5) (a) to (e) at or above the minimum detection level specified in sub. (5) (a) 1.,
7(b) 1., (c) 1., (d) 1., or (e) 1.
AB682,7,98
(j) "Initial screening test" means a test by an immunoassay procedure of a urine
9specimen.
AB682,7,1410
(k) "Medical review officer" means a licensed physician who has knowledge of
11substance abuse disorders, laboratory testing procedures, and chain-of-custody
12procedures and who has the necessary medical training to interpret and evaluate a
13positive test result, a person's medical history, and any other relevant biomedical
14information.
AB682,7,1715
(L) "Third-party administrator" means a person contracted by an employer,
16either directly or in cooperation with other employers or organizations, to administer
17the drug and alcohol testing program of the employer under this section.
AB682,7,1918
(m) "Verified positive test result" means a confirmed positive test result that
19has been verified by a medical review officer.
AB682,8,2
20(2) Testing required. Any person that bids for a contract to perform work on
21a project of public works that is subject to s. 66.0903, 103.49, or 103.50 shall submit
22with the bid a statement on a form adopted by the department that the person, and
23all subcontractors and agents that will be performing work on the project, have in
24place, or will have in place before any work on the project commences, a drug and
25alcohol testing program that complies with this section. An employer may contract
1with a 3rd-party administrator to administer the employer's drug and alcohol
2testing program under this section.
AB682,8,6
3(3) Notice to employees and applicants. (a) Before an employee or applicant
4is tested for the presence of drugs or alcohol, an employer or 3rd-party administrator
5shall provide the employee or applicant with a written policy statement that contains
6all of the following:
AB682,8,107
1. A general statement of the employer's policy concerning employee drug or
8alcohol use, which statement shall include the circumstances under sub. (4) under
9which an employee or applicant may be required to submit to testing and the
10consequences of a verified positive test result or of a refusal to submit to testing.
AB682,8,1311
2. A statement that the employer is required under sub. (2) to have in place a
12drug and alcohol testing program as a condition for performing work on a project of
13public works that is subject to s. 66.0903, 103.49, or 103.50.
AB682,8,1514
3. A list of all drugs for which testing is required, by brand name or common
15name as well as by chemical name.
AB682,8,1716
4. A description of the procedures specified in sub. (5) under which the testing
17is conducted and the employee protections specified in sub. (6).
AB682,8,1918
5. A list of the most common medications, by brand name or common name as
19well as by chemical name, that may alter or affect a test.
AB682,8,2120
6. A statement concerning the confidentiality of information relating to a test
21as provided in sub. (8).
AB682,8,2422
7. The names, addresses, and telephone numbers of employee assistance
23programs and local drug and alcohol rehabilitation programs at which the employee
24or applicant may voluntarily seek treatment.
AB682,9,8
18. A statement that an employee or applicant who receives a confirmed positive
2test result may challenge or explain the result to the medical review officer within
35 working days after receiving notification of the test result; that, if the explanation
4is unsatisfactory to the medical review officer, the medical review officer will report
5the test result to the employer; and that the employee or applicant may, within 5
6working days after receiving that notice, request a retest of the specimen that tested
7positive by a certified laboratory chosen by the employee or applicant at the expense
8of the employee or applicant.
AB682,9,139
9. A statement that the employee or applicant, both before and after testing,
10shall be given the opportunity to provide any information that he or she considers
11relevant to the test, including identification of any prescription drugs or
12nonprescription drugs that he or she is currently using or has recently used or any
13other relevant medical information.
AB682,9,1914
(b) An employer that requires testing under this section shall include notice of
15that requirement on all vacancy announcements for positions for which the testing
16is required, shall post notice of the employer's testing policy in at least one
17conspicuous and easily accessible place on the site of the project of public works that
18is subject to s. 66.0903, 103.49, or 103.50, and shall make available a copy of the
19policy to any employee or applicant on request.
AB682,9,25
20(4) When testing required. (a) An employer may not permit an employee to
21work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50 unless
22the employee has tested negative for the presence of drugs or alcohol in the
23employee's system not more than 12 months preceding the date on which the
24employee commences work on the project or unless during those 12 months the
25employee has been participating in a random testing program under which not less
1than 20 percent of the participants in the program are randomly tested without
2warning during each 12-month period, participants are selected for testing
3according to objective, neutral, and nondiscriminatory criteria, and testing is spread
4out so that on any given day any given participant has an equal chance of being
5tested.
AB682,10,116
(b) After an employee begins work on a project of public works that is subject
7to s. 66.0903, 103.49, or 103.50, the employer shall require the employee to submit
8to reasonable-suspicion testing if the employer has a reasonable belief, based on
9specific objective and articulable facts and reasonable inferences drawn from those
10facts, that an employee is using or has used drugs or alcohol in violation of the
11employer's policy. Those facts and inferences may be based on any of the following:
AB682,10,1412
1. Facts or events observed while the employee is at work, such as direct
13observation of drug or alcohol use or of the physical symptoms or manifestations of
14being under the influence of drugs or alcohol.
AB682,10,1615
2. Abnormal conduct or erratic behavior of the employee while at work or a
16significant deterioration in the employee's work performance.
AB682,10,1717
3. A report of drug or alcohol use provided by a reliable and credible source.
AB682,10,2018
4. Evidence that the employee has tampered with a drug test during his or her
19employment with the employer or after receiving an offer of employment with the
20employer.
AB682,10,2221
5. Information that the employee has caused, contributed to, or been involved
22in an accident while at work.
AB682,11,223
6. Evidence that the employee has used, possessed, attempted to possess,
24distributed, or delivered drugs or alcohol while at work, while on the employer's
25premises or on the site of the project of public works that is subject to s. 66.0903,
1103.49, or 103.50, or while operating the employer's vehicles, machinery, or
2equipment.
AB682,11,43
7. Any other fact or event that provides a reasonable belief that the employee
4is using or has used drugs or alcohol in violation of the employer's policy.
AB682,11,125
(c) After an employee begins work on a project of public works that is subject
6to s. 66.0903, 103.49, or 103.50, the employer shall require the employee to submit
7to random testing. During the life of the project, not less than 20 percent of the
8employees employed on the project shall be randomly tested. Employees shall be
9selected for random testing according to objective, neutral, and nondiscriminatory
10criteria, and the testing shall be spread out throughout the life of the project so that
11on any given day any given employee has an equal chance of being tested. Testing
12under this paragraph shall be conducted without prior warning.
AB682,11,18
13(5) Testing procedure. Testing under this section shall be performed by a
14certified laboratory selected by the employer or 3rd-party administrator and shall
15be conducted in accordance with scientific and technical guidelines established by
16the substance abuse and mental health services administration of the federal
17department of health and human services for those certified laboratories. At a
18minimum, an employee or applicant shall be tested for all of the following:
AB682,11,2019
(a) Amphetamines, with the following minimum detection levels constituting
20a positive test result:
AB682,11,2221
1. A level of 1,000 nanograms per milliliter constituting an initial positive test
22result.
AB682,11,2423
2. A level of 500 nanograms per milliliter constituting a confirmed positive test
24result.
AB682,12,2
1(b) Cocaine metabolites, with the following minimum detection levels
2constituting a positive test result:
AB682,12,43
1. A level of 300 nanograms per milliliter constituting an initial positive test
4result.
AB682,12,65
2. A level of 150 nanograms per milliliter constituting a confirmed positive test
6result.
AB682,12,87
(c) Marijuana metabolites, with the following minimum detection levels
8constituting a positive test result:
AB682,12,109
1. A level of 50 nanograms per milliliter constituting an initial positive test
10result.
AB682,12,1211
2. A level of 15 nanograms per milliliter constituting a confirmed positive test
12result.
AB682,12,1413
(d) Opiates, with the following minimum detection levels constituting a
14positive test result:
AB682,12,1615
1. A level of 2,000 nanograms per milliliter constituting an initial positive test
16result.
AB682,12,1817
2. A level of 2,000 nanograms per milliliter constituting a confirmed positive
18test result.
AB682,12,2019
(e) Phencyclidine, with the following minimum detection levels constituting a
20positive test result:
AB682,12,2221
1. A level of 25 nanograms per milliliter constituting an initial positive test
22result.
AB682,12,2423
2. A level of 25 nanograms per milliliter constituting a confirmed positive test
24result.
AB682,13,3
1(f) Alcohol, with an alcohol concentration of the amount specified in s. 340.01
2(46m) (a) or more constituting a positive test result, as determined by an analysis of
3a breath specimen provided by the employee or applicant.
AB682,13,8
4(6) Employee protection. (a) Both before and after testing, an employee or
5applicant shall be given the opportunity to provide any information that he or she
6considers relevant to the test, including identification of any prescription drugs or
7nonprescription drugs that he or she is currently using or has recently used or any
8other relevant medical information.
AB682,13,149
(b) Within one working day after receipt of a verified positive test result, the
10employer or 3rd-party administrator shall inform the employee or applicant in
11writing of the test result, the consequences of the test result, and the options
12available to the employee or applicant. On request, the 3rd-party administrator or
13medical review officer shall provide a copy of the test result to the employee or
14applicant.
AB682,13,2015
(c) Within 5 working days after receiving a verified positive test result, the
16employee or applicant may request a retest of the specimen that tested positive by
17a certified laboratory chosen by the employee or applicant. The employee or
18applicant shall pay the cost of any retesting requested by the employee or applicant,
19but not required by the employer, subject to reimbursement by the employer if the
20result of the retest is negative.
AB682,13,2421
(d) An employer may not discharge, discipline, refuse to hire, or otherwise
22discriminate against an employee or applicant based solely on an initial positive test
23result or a confirmed positive test result that has not been verified by a medical
24review officer.
AB682,14,6
1(e) An employer may not discharge, discipline, or otherwise discriminate
2against an employee based solely on the employee voluntarily seeking treatment for
3a problem relating to drug or alcohol use if the employee has not previously tested
4positive for drug or alcohol use, entered an employee assistance program for
5problems relating to drug or alcohol use, or entered a drug or alcohol rehabilitation
6program.
AB682,14,117
(f) If testing is conducted based on reasonable suspicion under sub. (4) (b), the
8employer shall document in writing the circumstances on which that reasonable
9suspicion is based and, on request, shall provide a copy of that documentation to the
10employee. The employer shall retain a copy of that documentation for not less than
11one year.
AB682,14,2512
(g) Any test of an employee conducted under this section shall occur
13immediately before, during, or immediately after the regular work period of the
14employee. If the test is conducted during an employee's regular work period, the
15employee shall be paid for the time lost from work at the employee's hourly basic rate
16of pay, as defined in s. 103.49 (1) (b), plus the hourly contribution for health insurance
17benefits, vacation benefits, pension benefits, and any other bona fide economic
18benefits payable to the employee. If the test is conducted outside the employee's
19regular work period, the employee shall be paid for the time necessary to take the
20test, including reasonable travel time, at the employee's hourly basic rate of pay. The
21employer shall pay the cost of all testing under this section required by the employer.
22The employee or applicant shall pay the cost of any retesting or additional testing
23requested by the employee or applicant, but not required by the employer, subject to
24reimbursement by the employer if the result of the retest or additional test is
25negative.
AB682,15,3
1(7) Employer protection. (a) An employee or applicant who has a verified
2positive test result is not considered to be an individual with a disability, as defined
3in s. 111.32 (8).
AB682,15,64
(b) This section does not prohibit an employer from establishing and enforcing
5reasonable work rules relating to the use, possession, distribution, or delivery of
6drugs or alcohol in the workplace.
AB682,15,107
(c) The establishment, implementation, or administration of a testing program
8under this section does not create a physician-patient relationship between an
9employee or applicant and the employer, a 3rd-party administrator, a medical
10review officer, or any other person conducting or evaluating a test under this section.
AB682,15,13
11(8) Confidentiality. (a) Except as required or permitted under this section,
12any information, written or otherwise, relating to the result of a test conducted under
13this section shall remain confidential and may be disclosed only as follows:
AB682,15,1814
1. On the specific written consent of the employee or applicant who is the
15subject of the test. That consent shall state the name of the person who is authorized
16to obtain the information, the purpose of the disclosure, the precise information to
17be disclosed, and the duration of the consent and shall be signed by the person
18authorizing the disclosure.
AB682,15,2219
2. On the order of a court, hearing examiner, arbitrator, or other decision maker
20for purposes of a court proceeding, administrative proceeding, grievance proceeding,
21or any other proceeding arising out of an adverse employment action taken as a
22result of a test conducted under this section.
AB682,15,2523
(b) Except as provided in par. (a) 2. and (c), information relating to the results
24of a test conducted under this section may not be used against an employee or
25applicant in any criminal or civil proceeding.