AB682: Bill Text

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 Section 1. 16.855 (9m) of the statutes is created to read:

AB682,5,2 16.855 (9m) The department shall require a bidder for a contract to perform construction work on a project of public works that is subject to s. 103.49 to submit with the bid a statement that the bidder, and all subcontractors and agents that will be performing work on the project, have in place, or will have in place before any work on the project commences, a drug and alcohol testing program that complies with s. 103.503. A statement specified under this subsection shall be submitted on a form that is adopted and furnished by the department of workforce development.

AB682, s. 2 Section 2. 66.0901 (10) of the statutes is created to read:

AB682,5,11 66.0901 (10) Drug and alcohol testing requirements. A municipality shall require a bidder for a public contract that is subject to s. 66.0903 to submit with the bid a statement that the bidder, and all subcontractors and agents that will be performing work under the public contract, have in place, or will have in place before any work under the public contract commences, a drug and alcohol testing program that complies with s. 103.503. A statement specified under this subsection shall be submitted on a form that is adopted and furnished by the department of workforce development.

AB682, s. 3 Section 3. 84.06 (2) (c) of the statutes is created to read:

AB682,5,20 84.06 (2) (c) The department or an agent under par. (b) shall require a bidder for a contract to perform construction work on a project of highway improvements that is subject to s. 103.50 to submit with the bid a statement that the bidder, and all subcontractors and agents that will be performing work on the project, have in place, or will have in place before any work on the project commences, a drug and alcohol testing program that complies with s. 103.503. A statement specified under this paragraph shall be submitted on a form that is adopted and furnished by the department of workforce development.

AB682, s. 4 Section 4. 103.503 of the statutes is created to read:

AB682,5,22 103.503 Drug-free public works projects. (1) Definitions. In this section:

AB682,5,23 (a) "Alcohol" has the meaning given in s. 340.01 (1q).

AB682,6,3 (b) "Applicant" means a person who has applied for and been offered a position as an employee with an employer conditioned on successfully passing a test for the presence of drugs or alcohol in the person's system.

AB682,6,6 (c) "Certified laboratory" means a laboratory that is certified by the substance abuse and mental health services administration of the federal department of health and human services to engage in drug testing for federal agencies.

AB682,6,9 (d) "Confirmatory test" means a test by a gas chromatography/mass spectrometry testing procedure of a urine specimen conducted after an initial screening test.

AB682,6,13 (e) "Confirmed positive test result" means a finding by a confirmatory test of the presence in the tested urine of any of the drugs or their metabolites specified in sub. (5) (a) to (e) at or above the minimum detection level specified in sub. (5) (a) 2., (b) 2., (c) 2., (d) 2., or (e) 2.

AB682,6,15 (f) "Drug" means any of the following that the department determines by rule promulgated under sub. (9) is subject to testing under this section:

AB682,6,16 1. A controlled substance, as defined in s. 961.01 (4).

AB682,6,17 2. A controlled substance analog, as defined in s. 961.01 (4m).

AB682,6,18 3. A prescription drug, as defined in s. 450.01 (20).

AB682,6,20 4. A drug, as defined in s. 450.01 (10), that may be dispensed without a prescription.

AB682,6,23 (g) "Employee" means a laborer, worker, mechanic, or truck driver who performs the work described in s. 66.0903 (4), 103.49 (2m), or 103.50 (2m) on a project of public works that is subject to s. 66.0903, 103.49, or 103.50.

AB682,7,3 (h) "Employer" means a contractor, subcontractor, or agent of a contractor or subcontractor that performs work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50.

AB682,7,7 (i) "Initial positive test result" means a finding by an initial screening test of the presence in the tested urine of any of the drugs or their metabolites specified in sub. (5) (a) to (e) at or above the minimum detection level specified in sub. (5) (a) 1., (b) 1., (c) 1., (d) 1., or (e) 1.

AB682,7,9 (j) "Initial screening test" means a test by an immunoassay procedure of a urine specimen.

AB682,7,14 (k) "Medical review officer" means a licensed physician who has knowledge of substance abuse disorders, laboratory testing procedures, and chain-of-custody procedures and who has the necessary medical training to interpret and evaluate a positive test result, a person's medical history, and any other relevant biomedical information.

AB682,7,17 (L) "Third-party administrator" means a person contracted by an employer, either directly or in cooperation with other employers or organizations, to administer the drug and alcohol testing program of the employer under this section.

AB682,7,19 (m) "Verified positive test result" means a confirmed positive test result that has been verified by a medical review officer.

AB682,8,2 (2) Testing required. Any person that bids for a contract to perform work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50 shall submit with the bid a statement on a form adopted by the department that the person, and all subcontractors and agents that will be performing work on the project, have in place, or will have in place before any work on the project commences, a drug and alcohol testing program that complies with this section. An employer may contract with a 3rd-party administrator to administer the employer's drug and alcohol testing program under this section.

AB682,8,6 (3) Notice to employees and applicants. (a) Before an employee or applicant is tested for the presence of drugs or alcohol, an employer or 3rd-party administrator shall provide the employee or applicant with a written policy statement that contains all of the following:

AB682,8,10 1. A general statement of the employer's policy concerning employee drug or alcohol use, which statement shall include the circumstances under sub. (4) under which an employee or applicant may be required to submit to testing and the consequences of a verified positive test result or of a refusal to submit to testing.

AB682,8,13 2. A statement that the employer is required under sub. (2) to have in place a drug and alcohol testing program as a condition for performing work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50.

AB682,8,15 3. A list of all drugs for which testing is required, by brand name or common name as well as by chemical name.

AB682,8,17 4. A description of the procedures specified in sub. (5) under which the testing is conducted and the employee protections specified in sub. (6).

AB682,8,19 5. A list of the most common medications, by brand name or common name as well as by chemical name, that may alter or affect a test.

AB682,8,21 6. A statement concerning the confidentiality of information relating to a test as provided in sub. (8).

AB682,8,24 7. The names, addresses, and telephone numbers of employee assistance programs and local drug and alcohol rehabilitation programs at which the employee or applicant may voluntarily seek treatment.

AB682,9,8 8. A statement that an employee or applicant who receives a confirmed positive test result may challenge or explain the result to the medical review officer within 5 working days after receiving notification of the test result; that, if the explanation is unsatisfactory to the medical review officer, the medical review officer will report the test result to the employer; and that the employee or applicant may, within 5 working days after receiving that notice, request a retest of the specimen that tested positive by a certified laboratory chosen by the employee or applicant at the expense of the employee or applicant.

AB682,9,13 9. A statement that the employee or applicant, both before and after testing, shall be given the opportunity to provide any information that he or she considers relevant to the test, including identification of any prescription drugs or nonprescription drugs that he or she is currently using or has recently used or any other relevant medical information.

AB682,9,19 (b) An employer that requires testing under this section shall include notice of that requirement on all vacancy announcements for positions for which the testing is required, shall post notice of the employer's testing policy in at least one conspicuous and easily accessible place on the site of the project of public works that is subject to s. 66.0903, 103.49, or 103.50, and shall make available a copy of the policy to any employee or applicant on request.

AB682,9,25 (4) When testing required. (a) An employer may not permit an employee to work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50 unless the employee has tested negative for the presence of drugs or alcohol in the employee's system not more than 12 months preceding the date on which the employee commences work on the project or unless during those 12 months the employee has been participating in a random testing program under which not less than 20 percent of the participants in the program are randomly tested without warning during each 12-month period, participants are selected for testing according to objective, neutral, and nondiscriminatory criteria, and testing is spread out so that on any given day any given participant has an equal chance of being tested.

AB682,10,11 (b) After an employee begins work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50, the employer shall require the employee to submit to reasonable-suspicion testing if the employer has a reasonable belief, based on specific objective and articulable facts and reasonable inferences drawn from those facts, that an employee is using or has used drugs or alcohol in violation of the employer's policy. Those facts and inferences may be based on any of the following:

AB682,10,14 1. Facts or events observed while the employee is at work, such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of drugs or alcohol.

AB682,10,16 2. Abnormal conduct or erratic behavior of the employee while at work or a significant deterioration in the employee's work performance.

AB682,10,17 3. A report of drug or alcohol use provided by a reliable and credible source.

AB682,10,20 4. Evidence that the employee has tampered with a drug test during his or her employment with the employer or after receiving an offer of employment with the employer.

AB682,10,22 5. Information that the employee has caused, contributed to, or been involved in an accident while at work.

AB682,11,2 6. Evidence that the employee has used, possessed, attempted to possess, distributed, or delivered drugs or alcohol while at work, while on the employer's premises or on the site of the project of public works that is subject to s. 66.0903, 103.49, or 103.50, or while operating the employer's vehicles, machinery, or equipment.

AB682,11,4 7. Any other fact or event that provides a reasonable belief that the employee is using or has used drugs or alcohol in violation of the employer's policy.

AB682,11,12 (c) After an employee begins work on a project of public works that is subject to s. 66.0903, 103.49, or 103.50, the employer shall require the employee to submit to random testing. During the life of the project, not less than 20 percent of the employees employed on the project shall be randomly tested. Employees shall be selected for random testing according to objective, neutral, and nondiscriminatory criteria, and the testing shall be spread out throughout the life of the project so that on any given day any given employee has an equal chance of being tested. Testing under this paragraph shall be conducted without prior warning.

AB682,11,18 (5) Testing procedure. Testing under this section shall be performed by a certified laboratory selected by the employer or 3rd-party administrator and shall be conducted in accordance with scientific and technical guidelines established by the substance abuse and mental health services administration of the federal department of health and human services for those certified laboratories. At a minimum, an employee or applicant shall be tested for all of the following:

AB682,11,20 (a) Amphetamines, with the following minimum detection levels constituting a positive test result:

AB682,11,22 1. A level of 1,000 nanograms per milliliter constituting an initial positive test result.

AB682,11,24 2. A level of 500 nanograms per milliliter constituting a confirmed positive test result.

AB682,12,2 (b) Cocaine metabolites, with the following minimum detection levels constituting a positive test result:

AB682,12,4 1. A level of 300 nanograms per milliliter constituting an initial positive test result.

AB682,12,6 2. A level of 150 nanograms per milliliter constituting a confirmed positive test result.

AB682,12,8 (c) Marijuana metabolites, with the following minimum detection levels constituting a positive test result:

AB682,12,10 1. A level of 50 nanograms per milliliter constituting an initial positive test result.

AB682,12,12 2. A level of 15 nanograms per milliliter constituting a confirmed positive test result.

AB682,12,14 (d) Opiates, with the following minimum detection levels constituting a positive test result:

AB682,12,16 1. A level of 2,000 nanograms per milliliter constituting an initial positive test result.

AB682,12,18 2. A level of 2,000 nanograms per milliliter constituting a confirmed positive test result.

AB682,12,20 (e) Phencyclidine, with the following minimum detection levels constituting a positive test result:

AB682,12,22 1. A level of 25 nanograms per milliliter constituting an initial positive test result.

AB682,12,24 2. A level of 25 nanograms per milliliter constituting a confirmed positive test result.

AB682,13,3 (f) Alcohol, with an alcohol concentration of the amount specified in s. 340.01 (46m) (a) or more constituting a positive test result, as determined by an analysis of a breath specimen provided by the employee or applicant.

AB682,13,8 (6) Employee protection. (a) Both before and after testing, an employee or applicant shall be given the opportunity to provide any information that he or she considers relevant to the test, including identification of any prescription drugs or nonprescription drugs that he or she is currently using or has recently used or any other relevant medical information.

AB682,13,14 (b) Within one working day after receipt of a verified positive test result, the employer or 3rd-party administrator shall inform the employee or applicant in writing of the test result, the consequences of the test result, and the options available to the employee or applicant. On request, the 3rd-party administrator or medical review officer shall provide a copy of the test result to the employee or applicant.

AB682,13,20 (c) Within 5 working days after receiving a verified positive test result, the employee or applicant may request a retest of the specimen that tested positive by a certified laboratory chosen by the employee or applicant. The employee or applicant shall pay the cost of any retesting requested by the employee or applicant, but not required by the employer, subject to reimbursement by the employer if the result of the retest is negative.

AB682,13,24 (d) An employer may not discharge, discipline, refuse to hire, or otherwise discriminate against an employee or applicant based solely on an initial positive test result or a confirmed positive test result that has not been verified by a medical review officer.

AB682,14,6 (e) An employer may not discharge, discipline, or otherwise discriminate against an employee based solely on the employee voluntarily seeking treatment for a problem relating to drug or alcohol use if the employee has not previously tested positive for drug or alcohol use, entered an employee assistance program for problems relating to drug or alcohol use, or entered a drug or alcohol rehabilitation program.

AB682,14,11 (f) If testing is conducted based on reasonable suspicion under sub. (4) (b), the employer shall document in writing the circumstances on which that reasonable suspicion is based and, on request, shall provide a copy of that documentation to the employee. The employer shall retain a copy of that documentation for not less than one year.

AB682,14,25 (g) Any test of an employee conducted under this section shall occur immediately before, during, or immediately after the regular work period of the employee. If the test is conducted during an employee's regular work period, the employee shall be paid for the time lost from work at the employee's hourly basic rate of pay, as defined in s. 103.49 (1) (b), plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits, and any other bona fide economic benefits payable to the employee. If the test is conducted outside the employee's regular work period, the employee shall be paid for the time necessary to take the test, including reasonable travel time, at the employee's hourly basic rate of pay. The employer shall pay the cost of all testing under this section required by the employer. The employee or applicant shall pay the cost of any retesting or additional testing requested by the employee or applicant, but not required by the employer, subject to reimbursement by the employer if the result of the retest or additional test is negative.

AB682,15,3 (7) Employer protection. (a) An employee or applicant who has a verified positive test result is not considered to be an individual with a disability, as defined in s. 111.32 (8).

AB682,15,6 (b) This section does not prohibit an employer from establishing and enforcing reasonable work rules relating to the use, possession, distribution, or delivery of drugs or alcohol in the workplace.

AB682,15,10 (c) The establishment, implementation, or administration of a testing program under this section does not create a physician-patient relationship between an employee or applicant and the employer, a 3rd-party administrator, a medical review officer, or any other person conducting or evaluating a test under this section.

AB682,15,13 (8) Confidentiality. (a) Except as required or permitted under this section, any information, written or otherwise, relating to the result of a test conducted under this section shall remain confidential and may be disclosed only as follows:

AB682,15,18 1. On the specific written consent of the employee or applicant who is the subject of the test. That consent shall state the name of the person who is authorized to obtain the information, the purpose of the disclosure, the precise information to be disclosed, and the duration of the consent and shall be signed by the person authorizing the disclosure.

AB682,15,22 2. On the order of a court, hearing examiner, arbitrator, or other decision maker for purposes of a court proceeding, administrative proceeding, grievance proceeding, or any other proceeding arising out of an adverse employment action taken as a result of a test conducted under this section.

AB682,15,25 (b) Except as provided in par. (a) 2. and (c), information relating to the results of a test conducted under this section may not be used against an employee or applicant in any criminal or civil proceeding.

AB682,16,4 (c) An employer may use any information, written or otherwise, relating to the result of a test conducted under this section in a court proceeding, administrative proceeding, grievance proceeding, or any other proceeding arising out of an adverse employment action taken as a result of a test conducted under this section.

AB682,16,12 (9) Records; inspection; enforcement. (a) Each employer shall keep full and accurate records documenting the employer's compliance with this section. The department or a contracting local governmental unit under s. 66.0903 may demand and examine, and every employer shall keep, and furnish upon request by the department or local governmental unit, copies of all records and information relating to the employer's compliance with this section. The department may inspect records in the manner provided in this chapter, and every employer is subject to the requirements of this chapter relating to the examination of records.

AB682,16,21 (b) If requested by any person, the department shall inspect the records of any employer to ensure compliance with this section. If the employer subject to the inspection is found to be in compliance and if the person making the request is a person performing the work specified in s. 66.0903 (4), 103.49 (2m), or 103.50 (2m), the department shall charge the person making the request the actual cost of the inspection. If the employer subject to the inspection is found to be in compliance and if the person making the request is not a person performing the work specified in s. 66.0903 (4), 103.49 (2m), or 103.50 (2m), the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater.