SF0021 - State employee drug testing.
|
2001 |
State of Wyoming |
01LSO-0005 |
SENATE FILE NO. SF0021
State employee drug testing.
Sponsored by: Senator(s) Hinchey and Representative(s)
Huckfeldt
A BILL
for
1 AN ACT relating to
public employees; providing for random
2 drug
testing of state employees and independent contractors
3
holding specified positions; specifying certain procedures
4 and
minimum requirements; authorizing rulemaking; providing
5 for
disciplinary action; providing for confidentiality;
6 providing
an appropriation; and providing for an effective
7
date.
8
9 Be It Enacted by the Legislature of the State of Wyoming:
10
11 Section 1. W.S. 9-13-201 through 9-13-205 are created
12 to read:
13
14 ARTICLE 2
15 CONTROLLED SUBSTANCE TESTING
16
Page 1
1 9-13-201. Definitions.
2
3 (a) As used in
this article, unless the context
4
clearly indicates otherwise:
5
6 (i) "Controlled
substance" means as defined in
7
W.S. 35-7-1002(a)(iv);
8
9 (ii) "Department"
means the department of
10 administration and information acting
through the human
11 resources division;
12
13 (iii) "Drug
testing" means testing for the
14 presence of controlled substances pursuant
to this article;
15
16 (iv) "Employee"
means any employee or
17 independent contractor receiving a salary or
hourly wage
18 from any state agency;
19
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
Page 2
1
workplace drug testing programs, or other professionally
2
valid procedures approved by rule of the department;
3
4 (vi) "High-risk position" means:
5
6 (A) Peace officers;
7
8 (B) Probation and parole agents;
9
10 (C) Employees
at a state correctional
11 facility;
12
13 (D) Any
position in which the employee is
14 authorized to operate a motor vehicle owned
or leased by a
15 state agency; and
16
17 (E) Those
additional positions, as
18 determined by rule of the department, with
duties where
19 inattention to duty or errors in judgment
while on duty
20 will have the potential for significant risk
of harm to the
21 employee, other employees or the general
public.
22
23 (vii) "Peace
officer" means any of the positions
24 identified in W.S. 7-2-101(a)(iv);
Page 3
1
2 (viii) "Specimen"
means a tissue, hair or
3 product
of the human body capable of revealing the presence
4 of
controlled substances or their metabolites;
5
6 (ix) "State
agency" means any authority, bureau,
7
board, commission, department, division or institution of
8 the
state;
9
10 (x) "State
correctional facility" means the
11 Wyoming state penitentiary, the Wyoming
women's center, any
12 penitentiary honor farm or camp, Wyoming
boys' school and
13 Wyoming girls' school.
14
15 9-13-202. Employees subject to random
testing for
16 unlawful use of controlled substances.
17
18 (a) Employees
working in high-risk positions shall be
19 subject to random testing for evidence of
unlawful use of
20 controlled substances. The testing shall be conducted
21 immediately before, during or after the
regular work period
22 of the employee and shall be deemed to be
performed during
23 the work time for purposes of determining
compensation or
24 benefits for the employee.
Page 4
1
2 (b) The
department shall by rule determine those
3
positions which are high-risk positions under W.S.
4 9-13-201(a)(vi)(D)
and (E). Individual employees shall not
5 be
included under W.S. 9-13-201(a)(vi)(E) and shall not be
6
subject to random drug testing if they do not regularly
7
perform high-risk functions, regardless of the fact that
8
other employees in the same classification do perform such
9
high-risk functions.
10
11 (c) For
employees subject to random drug testing the
12 department shall adopt rules to establish:
13
14 (i) The portion
of employees in the high-risk
15 work group that may be selected at random
for testing at
16 each testing period. The department may vary the portion
17 of employees selected from any employee
group in order to
18 meet minimum federal requirements for
specific employee
19 groups;
20
21 (ii) Methods for
assuring that employees are
22 selected for testing on a random basis;
23 Page 5
1 (iii) Methods for
assuring that privacy
2
intrusions are minimized during collection of specimens;
3
4 (iv) Methods for
assuring that any specimens are
5
stored and transported to testing laboratories at proper
6
temperatures and under such conditions that the quality of
7 the
specimens shall not be jeopardized;
8
9 (v) Procedures
and forms for an employee to
10 provide any information he considers
relevant to the test,
11 including identification of currently or
recently used
12 prescription or nonprescription medication
or other
13 relevant medical information. The forms shall provide
14 notice of the most common medications by
brand name or
15 common name, as well as by chemical name,
which may alter
16 or affect the test. The providing of information shall not
17 preclude the administration of the test but
shall be taken
18 into account in interpreting any positive
test results;
19
20 (vi) Methods for
confirmatory tests and an
21 employee's contest of a test;
22
23 (vii) Methods for
assuring that the identity of
24 employees whose tests show the usage of a
controlled
Page 6
1
substance is limited to the employee's agency head and
2
department staff who are entitled to this information. The
3
rules shall provide for the identification of those persons
4
entitled to the information;
5
6 (viii) Disciplinary
action in accordance with
7
W.S. 9-13-204;
8
9 (ix) Such other
rules as the department may deem
10 appropriate to carry out the purposes of
this article.
11
12 (d) All state
agencies employing persons subject to
13 testing under this article shall provide
written policy
14 statements to such employees and applicants
for positions
15 subject to testing. The statements shall be in a form
16 approved by the department and shall
identify:
17
18 (i) The types of testing that may be required;
19
20 (ii) Disciplinary
action which may result from a
21 positive test;
22
23 (iii) A general
statement concerning
24 confidentiality;
Page 7
1
2 (iv) A listing
of common medications by brand or
3
common name, as well as chemical name, which may affect the
4
results of a test; and
5
6 (v) The consequences of refusing a test.
7
8 (e) The
department shall establish and maintain a
9
list of those laboratories qualified to conduct established
10 drug tests and shall determine which
controlled substances
11 will be the subject of testing.
12
13 (f) Any
employee subject to this article who is
14 required by federal law to undergo more
frequent testing
15 for controlled substances or other
substances shall be
16 required to meet those federal
requirements. In adopting
17 rules for testing under this article the
department shall
18 accommodate such federal testing
requirements for those
19 employees.
20
21 9-13-203. Confirmatory tests; test
costs; retention
22 of specimens.
23 Page 8
1 (a) If the
results of a test indicate the presence of
2 a
controlled substance, the employee shall be notified by
3 the
employer within seventy-two (72) hours after receipt of
4 a
positive test result from the testing laboratory. The
5
employer shall provide upon the employee's request a copy
6 of
the test results. Upon informing the
employee of the
7
test results, the employer shall inform the employee of the
8
proposed disciplinary action, of his right to submit
9
documentation establishing that the substance was used
10 pursuant to a valid medical prescription or
was lawfully
11 used as otherwise authorized by state or
federal law and of
12 his right to request a confirmatory
test. An employee
13 shall have seventy-two (72) hours after
receipt of notice
14 of a positive test to submit the
documentation and to have
15 a new specimen submitted for confirmation at
another
16 laboratory listed pursuant to W.S. 9-13-202(e),
chosen by
17 the employee. The second laboratory must test at equal or
18 greater sensitivity for the controlled
substance in
19 question as the first laboratory. The confirmatory test
20 shall use gas chromatography/mass
spectrometry or an
21 equivalent or more accurately accepted
method.
22
23 (b) Within five
(5) working days after receipt of a
24 confirmed positive test, the employer shall
notify the
Page 9
1
employee. The employer shall
include with this notice its
2
determination as to whether the explanation or challenge of
3 the
positive test results is satisfactory to the employer.
4 If
the explanation or challenge is unsatisfactory the
5
employer shall so notify the employee and provide a copy of
6 the
confirmed positive test results, together with the
7
proposed disciplinary action and the employee's right to
8
institute an administrative challenge to the test result
9 and
proposed disciplinary action as provided in W.S.
10 9-13-204.
11
12 (c) Any
employee who refuses to provide a specimen,
13 when requested to do so in accordance with
the random drug
14 testing conducted pursuant to this article
and
15 administrative rules and regulations
promulgated under this
16 article, shall have the test recorded as a
positive test
17 for the unlawful use of controlled
substances. The
18 employee shall be notified at the time of
his refusal that
19 the refusal shall be treated as a positive
result and shall
20 subject the employee to disciplinary action
in accordance
21 with the provisions of W.S. 9-13-204.
22
23 (d) Every
specimen which produces a positive result
24 shall be preserved by the laboratory that
conducted the
Page 10
1
initial test until receiving notification from the
2
department that the initial test will not be subject to
3
confirmation and the specimen no longer needs to be
4
preserved. The laboratory
conducting a confirmation test
5
which produces a positive result shall preserve the
6
specimen for thirty (30) days after the time to institute
7 an
administrative or legal challenge to the test result has
8
lapsed. If an administrative or
legal challenge to the
9
test results is taken the confirmatory test specimen shall
10 be preserved until the matter is finally
resolved.
11
12 (e) Costs of
the initial and confirmatory testing
13 under this article shall be paid from public
funds by the
14 employing state agency. Costs of testing beyond the
15 initial and confirmatory test shall be borne
by the
16 employee.
17
18 9-13-204. Disciplinary action; review.
19
20 (a) Any
employee found to have a positive test
21 result, including employees refusing to
provide a specimen
22 for testing, shall be subject to
disciplinary action in
23 accordance with rules of the
department. The disciplinary
24 action for employees testing positive for
the first time
Page 11
1
shall take into consideration the risk the employee posed
2 to
others by using a controlled substance and the
3
employee's work history. An
employee testing positive for
4 the
first time under this article shall be subject to a
5
minimum of five (5) days suspension without pay. An
6
employee testing positive for a second time under this
7
article shall be terminated from employment.
8
9 (b) An employee
who has submitted documentation to
10 explain a positive test result or who has
submitted a new
11 specimen for confirmation shall be placed in
a position
12 which is not high risk or, if such a
position is not
13 available, on leave status with pay pending
the
14 confirmatory test. Disciplinary action shall be imposed
15 upon notification to the employee of the
employer's receipt
16 of a confirmed positive test and that any
explanation or
17 challenge has been determined to be
unsatisfactory.
18
19 (c) An employee
subject to discipline pursuant to
20 this article may institute administrative
proceedings and
21 subsequent legal review regarding the test
results and
22 proposed discipline in accordance with
grievance procedures
23 established by rule of the department.
24 Page 12
1 (d) For
purposes of this section, a positive initial
2
test and a positive confirmatory test shall be considered
3 as
one (1) positive test. A positive
initial test shall be
4
considered as one (1) positive test if an employee does not
5
submit a second specimen for a confirmatory test.
6
7 9-13-205. Confidentiality.
8
9 (a) Test
results and all other information regarding
10 individual employees which is received or
produced pursuant
11 to this article shall remain confidential in
accordance
12 with W.S. 16-4-203(d)(iii) and shall not be
made publicly
13 available unless necessary for the
administration of this
14 article or otherwise mandated by other state
or federal
15 law.
16
17 (b) All notices
required to be provided by a state
18 agency or employee under this article shall
be provided in
19 writing.
20
21 Section
2. W.S. 9-2-1022(a) by creating a new
22 paragraph (xv) and 16-4-203(d)(iii)
are amended to read:
23
Page 13
1 9-2-1022. Duties of department
performed through
2 human resources division.
3
4 (a) Subject to
subsection (b) of this section, the
5
department through the human resources division shall:
6
7 (xv) Perform all duties
of the department
8 required by W.S. 9-13-201 through 9-13-205.
9
10 16-4-203. Right of inspection; grounds
for denial;
11 access of news media; order permitting or restricting
12 disclosure.
13
14 (d) The
custodian shall deny the right of inspection
15 of the following records, unless otherwise
provided by law:
16
17 (iii) Personnel
files except those files shall
18 be available to the duly elected and
appointed officials
19 who supervise the work of the person in
interest.
20 Applications, performance ratings and
scholastic
21 achievement data shall be available only to
the person in
22 interest and to the duly elected and
appointed officials
23 who supervise his work. Drug testing results and other
24 information
produced or received pursuant to W.S. 9-13-201
Page 14
1 through 9-13-205, shall be available only to the person in
2 interest, the department of administration
and information
3 staff administering the provisions of
W.S. 9-13-201 through
4 9-13-205, and to the director of the
department, or if a
5 separate operating agency the agency
head, employing the
6 person. Employment contracts, working agreements or
other
7
documents setting forth the terms and conditions of
8
employment of public officials and employees are not
9
considered part of a personnel file and shall be available
10 for public inspection;
11
12 Section
3. There
is appropriated from the general
13 fund to the department of
administration and information
14 one hundred five thousand dollars
($105,000.00), or as much
15 thereof as is necessary, for
purposes of this act.
16
17 Section 4. This act is effective July 1, 2001.
18
19 (END)
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