AB736: Bill Text

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.

AB736,6,15 (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. (6) (a) to (e) at or above the minimum detection level specified in sub. (6) (a) 2., (b) 2., (c) 2., (d) 2., or (e) 2.

AB736,6,21 (f) "Drug" means any of the drugs or their metabolites specified in sub. (6) (a) to (e) or any other controlled substance, as defined in s. 961.01 (4), controlled substance analog, as defined in s. 961.01 (4m), prescription drug, as defined in s. 450.01 (20), or drug, as defined in s. 450.01 (10), that may be dispensed without a prescription, for which testing is required by an employer under its drug and alcohol testing program under this section.

AB736,6,23 (g) "Employee" means a laborer, worker, mechanic, or truck driver who performs the work described in s. 66.0903 (4) or 103.49 (2m) on a project.

AB736,6,25 (h) "Employer" means a contractor, subcontractor, or agent of a contractor or subcontractor that performs work on a project.

AB736,7,4 (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. (6) (a) to (e) at or above the minimum detection level specified in sub. (6) (a) 1., (b) 1., (c) 1., (d) 1., or (e) 1.

AB736,7,6 (j) "Initial screening test" means a test by an immunoassay procedure of a urine specimen.

AB736,7,11 (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.

AB736,7,13 (L) "Project" mean a project of public works that is subject to s. 66.0903 or 103.49.

AB736,7,16 (m) "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.

AB736,7,18 (n) "Verified positive test result" means a confirmed positive test result that has been verified by a medical review officer.

AB736,7,20 (o) "Working day" means each day except Saturday, Sunday, or a legal holiday under s. 895.20.

AB736,7,22 (2) Testing required. (a) Any person that bids for a contract to perform work on a project shall submit with the bid all of the following:

AB736,7,25 1. A statement on a form adopted by the department 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 this section.

AB736,8,4 2. A statement on a form adopted by the department 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 this section.

AB736,8,6 (b) An employer may contract with a 3rd-party administrator to administer the employer's drug and alcohol testing program under this section.

AB736,8,10 (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:

AB736,8,14 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.

AB736,8,16 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.

AB736,8,18 3. A list of all drugs for which testing is required, by brand name or common name as well as by chemical name.

AB736,8,20 4. A description of the procedures specified in sub. (6) under which the testing is conducted and the employee protections specified in sub. (7).

AB736,8,22 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.

AB736,8,24 6. A statement concerning the confidentiality of information relating to a test as provided in sub. (9).

AB736,9,3 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.

AB736,9,11 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 2 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 2 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.

AB736,9,16 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.

AB736,9,21 (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, and shall make available a copy of the policy to any employee or applicant on request.

AB736,9,25 (4) When testing required. (a) An employer may not permit an 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 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.

AB736,10,12 (b) After an employee begins work on a project, the employer may 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 the 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:

AB736,10,15 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.

AB736,10,17 2. Abnormal conduct or erratic behavior of the employee while at work or a significant deterioration in the employee's work performance.

AB736,10,18 3. A report of drug or alcohol use provided by a reliable and credible source.

AB736,10,21 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.

AB736,10,23 5. Information that the employee has caused, contributed to, or been involved in an accident while at work.

AB736,11,2 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, or while operating the employer's vehicles, machinery, or equipment.

AB736,11,4 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.

AB736,11,15 (c) After an employee begins work on a project, the employer shall require the employee to submit to random testing. During the life of the project, employees employed on the project who are participants in a random testing program described in par. (a) shall be tested as provided in par. (a). During the life of the project, not less than 20 percent of the employees employed on the project who are not participants in a random testing program described in par. (a) shall be randomly tested as provided in this paragraph. Employees tested under this paragraph 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.

AB736,11,19 (5) Nonapplicability. An employee or applicant who under any other state or federal law is required to submit to random drug and alcohol testing that is at least as strict as the testing required under this section is not required to submit to testing under this section.

AB736,11,25 (6) 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:

AB736,12,2 (a) Amphetamines, with the following minimum detection levels constituting a positive test result:

AB736,12,4 1. A level of 1,000 nanograms per milliliter constituting an initial positive test result.

AB736,12,6 2. A level of 500 nanograms per milliliter constituting a confirmed positive test result.

AB736,12,8 (b) Cocaine metabolites, with the following minimum detection levels constituting a positive test result:

AB736,12,10 1. A level of 300 nanograms per milliliter constituting an initial positive test result.

AB736,12,12 2. A level of 150 nanograms per milliliter constituting a confirmed positive test result.

AB736,12,14 (c) Marijuana metabolites, with the following minimum detection levels constituting a positive test result:

AB736,12,16 1. A level of 50 nanograms per milliliter constituting an initial positive test result.

AB736,12,18 2. A level of 15 nanograms per milliliter constituting a confirmed positive test result.

AB736,12,20 (d) Opiates, with the following minimum detection levels constituting a positive test result:

AB736,12,22 1. A level of 2,000 nanograms per milliliter constituting an initial positive test result.

AB736,12,24 2. A level of 2,000 nanograms per milliliter constituting a confirmed positive test result.

AB736,13,2 (e) Phencyclidine, with the following minimum detection levels constituting a positive test result:

AB736,13,4 1. A level of 25 nanograms per milliliter constituting an initial positive test result.

AB736,13,6 2. A level of 25 nanograms per milliliter constituting a confirmed positive test result.

AB736,13,9 (f) Alcohol, with an alcohol concentration of the amount specified in s. 885.235 (1g) (d) or more constituting a positive test result, as determined by an analysis of a breath specimen provided by the employee or applicant.