HB0304 - State employee drug testing-2.

2001

State of Wyoming

01LSO-0633

HOUSE BILL NO. HB0304

State employee drug testing-2.

Sponsored by: Representative(s) Rose

A BILL

for

1 AN ACT relating to public employees; providing for random
2 drug testing of state employees holding specified
3 positions; providing for testing of new employees;
4 specifying certain procedures and minimum requirements;
5 authorizing policies; providing for disciplinary action;
6 providing for confidentiality; providing an appropriation;
7 and providing for an effective date.

9 Be It Enacted by the Legislature of the State of Wyoming:

11 Section 1. W.S. 9-13-201 through 9-13-205 are created
12 to read:

14 ARTICLE 2

15 CONTROLLED SUBSTANCE TESTING

17 9-13-201. Definitions.

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2 (a) As used in this article, unless the context
3 clearly indicates otherwise:

5 (i) "Controlled substance" means as defined in
6 W.S. 35-7-1002(a)(iv);

8 (ii) "Department" means the department of
9 administration and information acting through the human
10 resources division;

12 (iii) "Drug testing" means testing for the
13 presence of controlled substances pursuant to this article;

15 (iv) "Employee" means a state employee working
16 at a state correctional facility and any employee of any
17 state agency who is authorized to carry or use any firearm
18 in the course of his employment;

20 (v) "Established drug test" means the collection
21 and testing of specimens administered in a manner
22 equivalent to that required by the federal department of
23 health and human services' mandatory guidelines for federal

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1 workplace drug testing programs, or other professionally
2 valid procedures approved by the department;

4 (vi) "Potential employee" means any employee
5 hired by a state agency after July 1, 2001;

7 (vii) "Specimen" means a tissue, hair or product
8 of the human body capable of revealing the presence of
9 controlled substances or their metabolites;

11 (viii) "State agency" means any authority,
12 bureau, board, commission, department, division or
13 institution of the state;

15 (ix) "State correctional facility" means the
16 Wyoming state penitentiary, the Wyoming women's center, any
17 penitentiary honor farm or camp, Wyoming boys' school and
18 Wyoming girls' school.

20 9-13-202. Employees subject to random testing for
21 unlawful use of controlled substances.

23 (a) Employees as defined in W.S. 9-13-201(a)(iv)
24 shall be subject to random testing for evidence of unlawful

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1 use of controlled substances. Potential employees shall be
2 subject to the same type of test prior to employment, but
3 shall not be subject to random testing unless they are an
4 employee as defined in W.S. 9-13-201(a)(iv). The testing
5 shall be conducted immediately before, during or after the
6 regular work period of the employee and shall be deemed to
7 be performed during the work time for purposes of
8 determining compensation or benefits for the employee.

10 (b) For employees subject to random drug testing the
11 department shall adopt a statement of general policy to
12 establish:

14 (i) The portion of employees that may be
15 selected at random for testing at each testing period. The
16 department may vary the portion of employees selected from
17 any employee group in order to meet minimum federal
18 requirements for specific employee groups;

20 (ii) Methods for assuring that employees are
21 selected for testing on a random basis;

23 (iii) Methods for assuring that privacy
24 intrusions are minimized during collection of specimens;

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2 (iv) Methods for assuring that any specimens are
3 stored and transported to testing laboratories at proper
4 temperatures and under such conditions that the quality of
5 the specimens shall not be jeopardized;

7 (v) Procedures and forms for an employee to
8 provide any information he considers relevant to the test,
9 including identification of currently or recently used
10 prescription or nonprescription medication or other
11 relevant medical information. The forms shall provide
12 notice of the most common medications by brand name or
13 common name, as well as by chemical name, which may alter
14 or affect the test. The providing of information shall not
15 preclude the administration of the test but shall be taken
16 into account in interpreting any positive test results;

18 (vi) Methods for confirmatory tests and an
19 employee's contest of a test;

21 (vii) Methods for assuring that the identity of
22 employees whose tests show the usage of a controlled
23 substance is limited to the employee's agency head and
24 department staff who are entitled to this information. The

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1 policies shall provide for the identification of those
2 persons entitled to the information;

4 (viii) Disciplinary action in accordance with
5 personnel rules of the department;

7 (ix) Such other policies as the department may
8 deem appropriate to carry out the purposes of this article.

10 (c) The department shall establish a general policy
11 applicable to all potential employees, establishing
12 procedures and methods specified in paragraphs (b)(iii)
13 through (vii) and (ix) of this section.

15 (d) All state agencies employing persons subject to
16 testing under this article shall provide written policy
17 statements to such employees and applicants for any
18 position to be filled after July 1, 2001. The statements
19 shall be in a form approved by the department and shall
20 identify:

22 (i) The types of testing that may be required;

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1 (ii) Disciplinary action which may result from a
2 positive test;

4 (iii) A general statement concerning
5 confidentiality;

7 (iv) A listing of common medications by brand or
8 common name, as well as chemical name, which may affect the
9 results of a test; and

11 (v) The consequences of refusing a test.

13 (e) The department shall establish and maintain a
14 list of those laboratories qualified to conduct established
15 drug tests and shall determine which controlled substances
16 will be the subject of testing.

18 (f) Any employee subject to this article who is
19 required by federal law to undergo more frequent testing
20 for controlled substances or other substances shall be
21 required to meet those federal requirements. In adopting
22 policies for testing under this article the department
23 shall accommodate such federal testing requirements for
24 those employees.

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2 9-13-203. Confirmatory tests; test costs; retention
3 of specimens.

5 (a) If the results of a test indicate the presence of
6 a controlled substance, the employee or potential employee
7 shall be notified by the employer within seventy-two (72)
8 hours after receipt of a positive test result from the
9 testing laboratory. The employer shall provide upon the
10 employee's or potential employee's request a copy of the
11 test results. Upon informing the employee or potential
12 employee of the test results, the employer shall inform the
13 employee of the proposed disciplinary action, or if a
14 potential employee that he will not be hired, of his right
15 to submit documentation establishing that the substance was
16 used pursuant to a valid medical prescription or was
17 lawfully used as otherwise authorized by state or federal
18 law and of his right to request a confirmatory test. An
19 employee or potential employee shall have seventy-two (72)
20 hours after receipt of notice of a positive test to submit
21 the documentation and to have a new specimen submitted for
22 confirmation at another laboratory listed pursuant to W.S.
23 9-13-202(d), chosen by the employee or potential employee.
24 The second laboratory must test at equal or greater

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1 sensitivity for the controlled substance in question as the
2 first laboratory. The confirmatory test shall use gas
3 chromatography/mass spectrometry or an equivalent or more
4 accurately accepted method.

6 (b) Within five (5) working days after receipt of a
7 confirmed positive test, the employer shall notify the
8 employee or potential employee. The employer shall include
9 with this notice its determination as to whether the
10 explanation or challenge of the positive test results is
11 satisfactory to the employer. If the explanation or
12 challenge is unsatisfactory the employer shall so notify
13 the employee or potential employee and provide a copy of
14 the confirmed positive test results, together with the
15 proposed disciplinary action or decision not to hire, as
16 applicable. A permanent employee, as defined by rule of the
17 department, shall also be notified of his right to
18 institute an administrative challenge to the test result
19 and proposed disciplinary action.

21 (c) Any employee or potential employee who refuses to
22 provide a specimen, when requested to do so in accordance
23 with the random drug testing conducted pursuant to this
24 article and policies adopted under this article, shall have

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1 the test recorded as a positive test for the unlawful use
2 of controlled substances. The employee or potential
3 employee shall be notified at the time of his refusal that
4 the refusal shall be treated as a positive result and shall
5 subject the employee to disciplinary action or decision not
6 to hire, as applicable.

8 (d) Every specimen which produces a positive result
9 shall be preserved by the laboratory that conducted the
10 initial test until receipt of notification from the
11 department that the initial test will not be subject to
12 confirmation and the specimen no longer needs to be
13 preserved. The laboratory conducting a confirmation test
14 which produces a positive result shall preserve the
15 specimen for thirty (30) days after the time to institute
16 an administrative or legal challenge to the test result has
17 lapsed. If an administrative or legal challenge to the test
18 results is taken, the confirmatory test specimen shall be
19 preserved until the matter is finally resolved.

21 (e) Costs of the initial and confirmatory testing
22 under this article shall be paid from public funds by the
23 employing state agency. Costs of testing beyond the initial

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1 and confirmatory test shall be borne by the employee or
2 potential employee.

4 9-13-204. Disciplinary action; review.

6 (a) Any employee found to have a positive test
7 result, including employees refusing to provide a specimen
8 for testing, shall be subject to disciplinary action. Any
9 potential employee found to have a positive test result,
10 including potential employees refusing to provide a
11 specimen for testing, shall not be hired.

13 (b) An employee who has submitted documentation to
14 explain a positive test result or who has submitted a new
15 specimen for confirmation shall be placed in a position
16 which is not high risk or, if such a position is not
17 available, on leave status with pay pending the
18 confirmatory test. Disciplinary action shall be imposed
19 upon notification to the employee of the employer's receipt
20 of a confirmed positive test and that any explanation or
21 challenge has been determined to be unsatisfactory.

23 (c) Disciplinary actions pursuant to this article
24 shall be taken in accordance with personnel rules of the

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1 department. A permanent employee subject to discipline
2 pursuant to this article may institute administrative
3 proceedings and subsequent legal review regarding the test
4 results and proposed discipline in accordance with
5 grievance procedures established by rule of the department.

7 (d) For purposes of this section, a positive initial
8 test and a positive confirmatory test shall be considered
9 as one (1) positive test. A positive initial test shall be
10 considered as one (1) positive test if an employee does not
11 submit a second specimen for a confirmatory test.

13 9-13-205. Confidentiality.

15 (a) Test results and all other information regarding
16 individual employees or potential employees which is
17 received or produced pursuant to this article shall remain
18 confidential in accordance with W.S. 16-4-203(d)(iii) and
19 shall not be made publicly available unless necessary for
20 the administration of this article or otherwise mandated by
21 other state or federal law.

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1 (b) All notices required to be provided by a state
2 agency, employee or potential employee under this article
3 shall be provided in writing.

5 Section 2. W.S. 9-2-1022(a) by creating a new
6 paragraph (xv) and 16-4-203(d)(iii) are amended to read:

8 9-2-1022. Duties of department performed through
9 human resources division.

11 (a) Subject to subsection (b) of this section, the
12 department through the human resources division shall:

14 (xv) Perform all duties of the department
15 required by W.S. 9-13-201 through 9-13-205.

17 16-4-203. Right of inspection; grounds for denial;
18 access of news media; order permitting or restricting
19 disclosure.

21 (d) The custodian shall deny the right of inspection
22 of the following records, unless otherwise provided by law:

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1 (iii) Personnel files except those files shall
2 be available to the duly elected and appointed officials
3 who supervise the work of the person in interest.
4 Applications, performance ratings and scholastic
5 achievement data shall be available only to the person in
6 interest and to the duly elected and appointed officials
7 who supervise his work. Drug testing results and other
8 information produced or received pursuant to W.S. 9-13-201
9 through 9-13-205, shall be available only to the person in
10 interest, the department of administration and information
11 staff administering the provisions of W.S. 9-13-201 through
12 9-13-205, and to the director of the department or, if a
13 separate operating agency, the agency head, employing the
14 person. Employment contracts, working agreements or other
15 documents setting forth the terms and conditions of
16 employment of public officials and employees are not
17 considered part of a personnel file and shall be available
18 for public inspection;

20 Section 3. The department of administration and
21 information and each state agency subject to the provisions
22 of this act shall adopt policies to implement the
23 provisions of this act no later than July 1, 2001.

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1 Section 4. There is appropriated from the general
2 fund to the department of administration and information
3 one hundred five thousand dollars ($105,000.00), or as much
4 thereof as is necessary, for purposes of this act.

6 Section 5.

8 (a) Section 3 of this act is effective immediately
9 upon completion of all acts necessary for a bill to become
10 law as provided by Article 4, Section 8 of the Wyoming
11 Constitution.

13 (b) Except as provided under subsection (a) of this
14 section, this act is effective July 1, 2001.

16 (END)

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