2003 - 2004 LEGISLATURE
November 20, 2003 - Introduced by Representatives Stone, Miller, Lothian,
Musser, Hines, Zepnick, Albers, M. Lehman, Ott, Vrakas and Nass,
cosponsored by Senators Darling and Plale. Referred to Committee on Labor.
AB682,1,4
1An Act to create 16.855 (9m), 66.0901 (10), 84.06 (2) (c) and 103.503 of the
2statutes;
relating to: drug and alcohol testing of employees who are required
3to be paid the prevailing wage rate for work performed on projects of public
4works.
Analysis by the Legislative Reference Bureau
Under current law, subject to certain exceptions, all laborers, workers,
mechanics, and truck drivers employed on a state or local public works project whose
estimated cost of completion is $37,000 or more for a single-trade public works
project or $180,000 or more for a multiple-trade public works project must be paid
at the rate paid for a majority of the hours worked in the person's trade or occupation
in the county in which the project is located (prevailing wage law).
This bill requires any person that bids for a contract to perform work on a public
works project that is subject to the prevailing wage law (project) to submit with the
bid a statement that the person, and all subcontractors and agents that will be
performing work on the project, (employer) have in place, or will have in place before
any work on the project commences, a drug and alcohol testing program that
complies with the bill. The bill permits an employer to contract with a third-party
administrator to administer the employer's drug and alcohol testing program.
Under the bill, an employer may not permit a laborer, worker, mechanic, or
truck driver who is covered under the prevailing wage law (employee) to work on a
project 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. After an employee
begins work on a project, the employee must submit to reasonable suspicion testing,
which is testing conducted based on a reasonable belief of the employer that the
employee is using or has used drugs or alcohol in violation of the employer's policy,
and random testing, which is testing conducted randomly on not less than 20 percent
of the employees employed on the project according to objective, neutral, and
nondiscriminatory criteria and spread out throughout the life of the project so that
on any given day any given employee has an equal chance of being tested.
The bill defines a "drug" as any controlled substance, controlled substance
analog, prescription drug, or nonprescription drug that the employer determines is
subject to testing under the bill, requires, at a minimum, that employees be tested
for amphetamines, cocaine, marijuana, opiates, phencyclidine, and alcohol, and
specifies the minimum detection levels that constitute a positive test result.
The bill requires an employer or third-party administrator, before testing an
employee or a person who has been offered a position contingent on passing a test
(applicant), to provide the employee or applicant with a written policy statement that
is required under the bill to include certain information, including all of the
following:
1. A general statement of the employer's policy concerning drug or alcohol use,
which statement must include the circumstances under which an employee or
applicant may be required to submit to testing and the consequences of a refusal to
submit to testing or of a verified positive test result, which is defined in the bill as
an initial positive test result that has been confirmed by a second test and that has
been verified by 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 (medical
review officer).
2. A statement that the testing is required as a condition of performing work
on a project.
3. A list of the drugs for which testing is required.
4. A description of the procedures under which the testing is conducted and the
employee protections specified in the bill.
5. A list of the most common medications that may alter or affect a test.
6. A statement concerning the confidentiality of information relating to a test
as provided in the bill. Specifically, the bill provides that information relating to a
test result is confidential and may be disclosed only on the specific written consent
of the employee or applicant or on the order of a court, hearing examiner, arbitrator,
or other decision maker for purposes of a proceeding arising out of an adverse
employment action taken as a result of the test. The bill further provides that
information relating to a test result may not be used against an employee or
applicant in any criminal or civil proceeding, except by the employer in a proceeding
arising out of an adverse employment action taken as a result of the test.
7. The names, addresses, and telephone numbers of employee assistance
programs and local drug and alcohol rehabilitation programs at which the employee
may voluntarily seek treatment.
8. A statement that the employee or applicant may challenge or explain a
confirmed positive test result to the medical review officer and may request a retest
of a specimen that has tested positive by a laboratory chosen by the employee or
applicant at the expense of the employee or applicant.
9. A statement that the employee or applicant, both before and after the test,
may provide any information that is relevant to the test, including identification of
any prescription or nonprescription drugs that the employee or applicant is currently
using or has recently used and any other relevant medical information.
The bill affords certain protections to an employee or applicant who is required
to be tested under the bill. Specifically, under the bill:
1. An employee or applicant must be given the opportunity to provide, both
before and after a test, information that is relevant to the test, including
identification of any prescription or nonprescription drugs that the employee or
applicant is taking and any other relevant medical information.
2. The employer or 3rd-party administrator must inform an employee or
applicant of a verified positive test result, the consequences of the test result, and the
options available to the employee or applicant, within one working day after the
employer receives the test result; the employee or applicant may, within five working
days after receiving that notice, request a retest of a specimen that tested positive
by a laboratory chosen by the employee or applicant at the expense of the employee
or applicant.
3. An employee may not be discharged, disciplined, or otherwise discriminated
against solely on the basis of 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, and an employee
or applicant may not be discharged, disciplined, or otherwise discriminated against
based solely on an initial positive test result or a confirmed positive test result that
has not been verified by a medical review officer.
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.
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(d) "Confirmatory test" means a test by a gas chromatography/mass
8spectrometry testing procedure of a urine specimen conducted after an initial
9screening test.
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(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).
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3. A prescription drug, as defined in s. 450.01 (20).
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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.