AB736: Bill Text

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.

AB736,13,14 (7) 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.

AB736,13,20 (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.

AB736,14,2 (c) Within 2 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.

AB736,14,6 (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.

AB736,14,11 (e) 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.

AB736,14,25 (f) 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.

AB736,15,3 (8) 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).

AB736,15,6 (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.

AB736,15,10 (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.

AB736,15,13 (d) No cause of action of any nature may arise against and no civil liability may be imposed upon an employer that has in place a drug and alcohol testing program that complies with this section for any of the following:

AB736,15,14 1. Any action taken in good faith based on a verified positive test result.

AB736,15,17 2. 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.

AB736,15,19 3. Any failure to detect the presence of alcohol or any specific drug, any medical condition, or any mental, emotional, or psychological condition.

AB736,15,20 4. Any decision to suspend or terminate a drug or alcohol testing program.

AB736,15,23 (9) 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:

AB736,16,3 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.

AB736,16,7 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.

AB736,16,10 (b) Except as provided in pars. (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.

AB736,16,14 (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.

AB736,16,19 (10) Compliance. (a) When the department finds that an employer is not in compliance with this section, the department shall notify the employer and the state agency or local governmental unit authorizing the work of the noncompliance and shall file the determination with the employer and the state agency or local governmental unit within 30 days after the date of that notice.

AB736,16,24 (b) Upon completion of a project and before receiving final payment for his or her work on the project, each agent or subcontractor shall furnish the contractor with an affidavit stating that the agent or subcontractor has complied fully with the requirements of this section. A contractor may not authorize final payment until the affidavit is filed in proper form and order.

AB736,17,10 (c) Upon completion of a project and before receiving final payment for his or her work on the project, each contractor shall file with the state agency or local governmental unit authorizing the work an affidavit stating that the contractor has complied fully with the requirements of this section and that the contractor has received an affidavit under par. (b) from each of the contractor's agents and subcontractors. A state agency or local governmental unit may not authorize a final payment until the affidavit is filed in proper form and order. An employer that knowingly permits an employee of the employer to work on a project in violation of this section is subject to the penalties specified in sub. (12) and to debarment under sub. (13).

AB736,17,18 (11) 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.

AB736,18,2 (b) If requested by any employee or representative of an employee, the department shall inspect the records of any employer to ensure compliance with this section. A request under this paragraph shall specify the types of records requested. If the employer subject to the inspection is found to be in compliance and if the person making the request is an employee, 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 a representative of an employee, the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater.

AB736,18,8 (12) Noncompliance; penalties. (a) An employee or applicant who refuses to submit to testing as required under this section 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. An employee who is the subject of more than one verified positive test result during the life of a project may not work on the project for the life of the project.

AB736,18,12 (b) Any employer that knowingly permits an employee of the employer to work on a project in violation of this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.

AB736,18,23 (13) Debarment. (a) Except as provided under pars. (b) and (c), the department shall distribute to all state agencies a list of all persons whom the department has found to have knowingly permitted an employee of the person to work on a project in violation of this section at any time in the preceding 3 years and shall notify any local governmental unit applying for a determination under s. 66.0903 (3) or exempted under s. 66.0903 (6) of the names of those persons. The department shall include with any name the address of the person and shall specify the date of the violation. A state agency or local governmental unit may not award any contract to the person unless otherwise recommended by the department or unless 3 years have elapsed from the date on which the department issued its findings or date of final determination by a court of competent jurisdiction, whichever is later.

AB736,19,2 (b) The department may not include in a notification under par. (a) the name of any person on the basis of having let work to a person whom the department has found to have knowingly permitted an employee of the person to work on a project in violation of this section.

AB736,19,6 (c) This subsection does not apply to any employer that in good faith commits a minor violation of this section, as determined on a case-by-case basis through administrative hearings with all rights to due process afforded to all parties, or that has not exhausted or waived all appeals.

AB736,19,13 (d) Any person submitting a bid on a project shall, on the date on which the person submits the bid, identify any construction business in which the person, or a shareholder, officer, or partner of the person, if the person is a business, owns, or has owned, at least a 25 percent interest on the date on which the person submits the bid or at any other time within 3 years preceding the date on which the person submits the bid, if the business has been found to have knowingly permitted an employee of the business to work on a project in violation of this section.

AB736,19,16 (14) Local ordinances; strict conformity required. A local governmental unit may enact an ordinance requiring an employee or applicant to submit to drug and alcohol testing only if the ordinance strictly conforms to this section.

AB736, s. 4 Section 4 . Nonstatutory provisions.

AB736,19,25 (1) Transitional provisions. An employer that is required under section 103.503 (2) of the statutes, as created by this act, to have, but that does not have, a drug and alcohol testing program in place on the effective date of this subsection shall provide notice to all of its employees that a drug and alcohol testing program is being implemented and may not begin actual drug and alcohol testing until 60 days after the date of the notice. An employer that has a drug and alcohol testing program in place on the effective date of this subsection is not required to provide notice under this subsection.

AB736, s. 5 Section 5. Initial applicability.

AB736,20,5 (1) Collective bargaining agreements. This act first applies to an employee who is affected by a collective bargaining agreement that contains provisions inconsistent with this act on the day on which the collective bargaining agreement expires or is extended, modified, or renewed, whichever occurs first.

AB736, s. 6 Section 6. Effective date.

AB736,20,8 (1) This act takes effect on the first day of the 19th month beginning after publication.

AB736,20,9 (End)