AB736: Bill Text

LRB-0090/3

GMM:wlj:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 736

October 6, 2005 - Introduced by Representatives Stone, Towns, Albers, Hines, Townsend, Musser, Strachota, Vos, Ott, Zepnick, Bies and Sinicki, cosponsored by Senators Darling, Plale, Brown, Wirch and Miller. Referred to Committee on Labor.

AB736,1,4 An Act to create 16.855 (9m), 66.0901 (10) and 103.503 of the statutes; relating to: drug and alcohol testing of employees who are required to be paid the prevailing wage rate for work performed on projects of public works, other than state highway projects, and providing a penalty.

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 $38,000 or more for a single-trade public works project or $186,000 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, other than a state highway project, that is subject to the prevailing wage law (project) to submit with the bid a statement that the person has 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 and a statement from each subcontractor or agent that will be performing work on the project that the subcontractor or agent has in place, or will have in place, such a drug and alcohol testing program. The bill permits a contractor, subcontractor, or agent (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 employer may require the employee to 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 must require the employee to submit to random testing, which is testing conducted randomly on not less than 20 percent of the employees participating in the random testing program according to objective, neutral, and nondiscriminatory criteria and spread out so that on any given day any given employee has an equal chance of being tested. The bill, however, excludes from testing under the bill any employee who under any other state or federal law is required to submit to testing that is at least as strict as the testing under the bill.

The bill defines a "drug" as amphetamines, cocaine, marijuana, opiates, or phencyclidine, or any other 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 third-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 two 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 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.

4. An employer that has in place a drug and alcohol testing program that complies with the bill is immune from civil liability for any action taken in good faith based on a verified positive test result; any failure to test an employee or applicant for the presence of drugs or alcohol, for the presence of a specific drug, for any medical condition, or for any mental, emotional, or psychological condition; any failure to detect the presence of alcohol or any specific drug, any medical condition, or any mental, emotional, or psychological condition; or any decision to suspend or terminate a drug or alcohol testing program.

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 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 may not work on the project for the life of the project. An employer that knowingly permits an employee of the employer to work on a project 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:

AB736, s. 1 Section 1. 16.855 (9m) of the statutes is created to read:

AB736,5,3 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 all of the following:

AB736,5,6 (a) A statement on a form adopted by the department of workforce development that the bidder has in place, before any work on the project commences, a drug and alcohol testing program that complies with s. 103.503.

AB736,5,11 (b) A statement on a form adopted by the department of workforce development from each subcontractor or agent that will be performing work on the project that the subcontractor or agent has 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.

AB736, s. 2 Section 2. 66.0901 (10) of the statutes is created to read:

AB736,5,15 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 all of the following:

AB736,5,19 (a) A statement on a form adopted by the department of workforce development that the bidder has 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.

AB736,5,24 (b) A statement on a form adopted by the department of workforce development a form adopted by the department of workforce development from each subcontractor or agent that will be performing work on the project that the subcontractor or agent has 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.

AB736, s. 3 Section 3. 103.503 of the statutes is created to read:

AB736,6,1 103.503 Drug-free public works projects. (1) Definitions. In this section:

AB736,6,2 (a) "Alcohol" has the meaning given in s. 340.01 (1q).

AB736,6,5 (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.

AB736,6,8 (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.

AB736,6,11 (d) "Confirmatory test" means a test by a gas chromatography/mass spectrometry testing procedure of a urine specimen conducted after an initial screening test.