AB736: Bill Text

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)