Legislature(1997 - 1998)
04/09/1997 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 207 - EMPLOYER DRUG TESTING PROGRAM Number 1275 JEFF LOGAN, Legislative Assistant to Representative Joe Green, spoke regarding HB 207, "An Act relating to employer drug and alcohol testing programs." He requested because of time constraints that he be allowed to provide a more detailed introduction of the bill when the committee reconvened at 5:30 p.m., after taking testimony on SB 41. MR. LOGAN advised members that HB 207 offered certain, limited immunity from law suit, in exchange for the employer developing a written drug testing plan and policy. He noted that earlier during the year, a number of legislators received a letter from a gentleman in Anchorage, Alaska who was a member of a national association who had model drug testing legislation. Mr. Logan pointed out that the sponsor of HB 207, Representative Joe Green, had requested that his staff research any legislation that existed in other states, or was being introduced on drug testing policies. He advised members that last year HB 522 had been introduced and he had discussed with the sponsor of that legislation whether or not they intended to reintroduce the legislation, and it was found out that they had not intended to reintroduce the legislation. Because of that, Mr. Logan advised members that they reviewed HB 522, discussed it with employer and employee groups, and arrived at the language contained in HB 207. CHAIRMAN GREEN accepted comments via teleconference from Anchorage, Alaska, and invited Frank Dillon to present his testimony on HB 207. Number 1406 FRANK DILLON, Executive Director, Alaska Trucking Association, advised members the Association was a 38-year-old trade association which consisted of truck users from all over the state. He advised members that they supported HB 207 and would like to see the bill passed and implemented in an expeditious manner. MR. DILLON stated that the Association saw the legislation as a type of tort reform. He pointed out that if a problem arose and damage had occurred that the person who was, basically, responsible for the damage incur the liability. Mr. Dillon stated that seemed logical and reasonable to the Trucking Association, and hoped that members would support the bill. Number 1435 MATTHEW FAGNANI, President of Allvest Laboratories, Inc., advised members they were a third party drug, alcohol program administrative company that provided drug and alcohol testing programs for more than 1400 companies. MR. FAGNANI advised members that he also served as a board member for the National Organization of the Substance Abuse Programmers Administration Association, which was an organization that promulgated good policy and standardized policies, and proper procedures throughout the nation. He noted that there were several hundred members involved in that organization nationwide. MR. FAGNANI advised members that HB 207 was necessary to establish policy for drug testing. He expressed that currently there were more than 53,000 Alaskan individuals involved in mandatory drug and alcohol testing by a the federal government; the U.S. Department of Transportation Industry, the Coast Guard, Airlines, Pipelines and Trucking industries. Mr. Fagnani advised members that it did not include all the non-mandated testing that was done, for instance, at the Alyeska Ski Resort, or the many hotels, such as the Westmark and the Hilton. He would estimate that the number of Alaskans covered by mandatory drug testing programs was closer to possibly 75,000 to 80,000 statewide. MR. FAGNANI expressed that when considering the state's population, a huge chunk of that population was in a program where there was no state guidelines as to how employers were supposed to establish testing programs. He pointed out that HB 207 would assist employers in establishing policies that would mandate the U.S. Department of Health and Human Services requirement for stamps of certified laboratories that were being used. MR. FAGNANI further stated that the bill would establish policy to have a standardized collection procedure, and also a policy to use a physician in the event of a positive test result. Mr. Fagnani pointed out that HB 207 was good legislation that would also protect the employer, as well as the employee by allowing employees the right to know what was expected of them through the vehicle of the employee policy. He stated that HB 207 was the type of legislation that required no fiscal note and was a voluntary program. Mr. Fagnani advised members he would be available when the committee reconvened at 5:30 p.m. in the event members should have questions they might wish to ask. Number 1566 REPRESENTATIVE BERKOWITZ asked if the testing that was currently done on the 75,000 Alaskans was done in the state. MR. FAGNANI advised members that it was not. He explained that currently, there were no operators conducting tests in the state of Alaska except for the Alaska Regional Hospital who did the screening tests. Mr. Fagnani expressed that all confirmations of positive tests were sent outside to a U.S. DHSS certified lab. Mr. Fagnani advised members that they currently conducted over 30,000 tests a year, and the lab they use had conducted over 2.5 million tests since 1989, and they were just a small regional lab. REPRESENTATIVE BERKOWITZ asked if there was any reason why those tests could not be conducted in the state of Alaska, adding that it appeared as thought there were a lot of tests being generated. MR. FAGNANI advised members that it was because of the volume, and Alaska really did not conduct a lot of tests. He pointed out that the lab they use was in Salt Lake City, Utah, who conduct approximately 1000 tests per day, 25,000 tests a month. Mr. Fagnani expressed that his volume would represent one month's testing to a lab their size. He advised members that Allvest used to be a drug testing laboratory in the state of Alaska, who had technicians and equipment, but had since donated all of that to one of the local schools. Mr. Fagnani expressed that there just was not the economy in the state to make it worthwhile, adding that Alaskans were price sensitive. He pointed out that currently a test would cost a trucker $60, and that would cover all the costs, including shipping costs to a lab in the Lower 48. Mr. Fagnani explained that if that same test was conducted in the state of Alaska, it would probably cost around $150 because a Ph.D. Toxicologist would be required, and there was only a handful of those in the state. Mr. Fagnani pointed out that start up costs would amount to approximately $1.5 million in order to become a certified lab. He stated that it was just cost prohibitive, and expressed that Allvest had considered, seriously, providing the service under their old ownership. Number 1664 REPRESENTATIVE PORTER declared a possible conflict of interest because he operated a security business for three years, that, among other things, administered drug testing for several companies in Anchorage, Alaska. He noted that they also looked into the notion of performing the ultimate tests in Alaska, and agreed that it was cost prohibitive. CHAIRMAN GREEN thanked Representative Porter for putting that on the record; however, it would not disqualify him from voting on the proposed legislation. REPRESENTATIVE ROKEBERG asked if Mr. Fagnani had had a chance to review the proposed draft committee substitute. MR. FAGNANI expressed that he had reviewed it, that Representative Green's staff faxed him a copy of that version of the bill. HB 207 - EMPLOYER DRUG TESTING PROGRAM Number 1930 CHAIRMAN GREEN advised members that Jeff Logan again would address the committee on HB 207, "An Act relating to employer drug and alcohol testing programs," which had been heard previously that day. JEFF LOGAN, Legislative Assistant to Representative Joe Green, Sponsor of HB 207, explained that the two proposed amendments had been requested by employee organizations. Mr. Logan advised members that Amendment 1, as designated by the Chairman, dealt with the privacy of the sample attainment process. He noted that there was a horror story brought to the attention of the sponsor that there was the case where an employer, basically, went out to the field and said, okay, we're going to do a test, and there was no provision for privacy made to the employees. Mr. Logan advised members that the amendment simply required that sample collection should be performed in a manner that guaranteed the individual's privacy, as well as to assure that by doing so, the sample would not be contaminated, adulterated or misidentified. MR. LOGAN pointed out that the concern with the last three terms of the amendment was that there was still the chain of custody procedures called for in the bill. REPRESENTATIVE JOE GREEN moved to adopt Amendment 1, HB 207, page 5, line 17 following ".", insert; Sample collection shall be performed in a manner that guarantees the individual's privacy to the maximum extent consistent with ensuring that the sample is not contaminated, adulterated, or misidentified. There being no objection, Amendment 1, HB 207 was adopted. REPRESENTATIVE JOE GREEN moved to adopt Amendment 2, HB 207, page 6, following line 16, insert a new subsection to read; (e) A drug test conducted under this section for a drug for which the United States Department of Health and Human Services has established a cutoff level shall be considered to have yielded a positive result if the test establishes the presence of the drug at levels equal to or greater than that cutoff level. For a drug for which the United States Department of Health and Human Services has not established a cutoff level, the employer shall, in the written policy under AS 23.10.620, inform employees of the cutoff level that the employer will use to establish the presence of the drug. MR. LOGAN explained that the second amendment was also brought to the sponsor's attention by an employee organization. He advised members that the concern was that the bill spoke to testing, but did not reference the levels that illegal substances were being tested for. Mr. Logan stated that Amendment 2 adopted the federal standards for cutoff levels. He provided an example of the cutoff level for marijuana which was 50 nanograms per milliliter. Mr. Logan explained that if the test results showed 40 nanograms per milliliter it would fall below the level. Mr. Logan explained that the concern was that employees know up front what was going to be tested for and Amendment 2 should address that concern. CHAIRMAN GREEN advised members that hearing no objection, Amendment 2, HB 207, was adopted. CHAIRMAN GREEN offered Amendment 3, HB 207, page 5, line 1, following ".", insert; Each employer shall ensure that all persons designated to supervise employees receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require an employee to undergo testing under 23.10.640. REPRESENTATIVE ROKEBERG objected. MR. LOGAN explained that Amendment 3 was another item brought to Representative Green's attention by employee organizations regarding the concern that the current version of HB 207 did not mention how, or who, would be observing the behavior that might lead to an indication or conclusion of drug abuse, or alcohol misuse. He advised members that the proposed language was the same as in the federal code. REPRESENTATIVE ROKEBERG noted that the question had been raised in the House Labor and Commerce Committee, and Amendment 3 was an endeavor on the part of Representative Joe Green, and commended the maker of the amendment and the sponsor of the bill for looking into the concern that had been expressed. He advised members that one of his concerns was requiring two hours of training for every supervisor in the state and the private sector, and questioned what the fiscal note would be from the private sector. REPRESENTATIVE ROKEBERG felt it was the intent to allow for supervisors to have some training, but the amendment, again, would require all supervisors to have the training. He asked Mr. Logan how that was applied in federal law in regards to the private sector's fiscal impact. Number 2210 MR. LOGAN explained that it would not be every private sector employee in the state that would fall under the provisions of Amendment 3, but only those employers who had established a drug and alcohol program and sought the indemnity that the statute offered. Mr. Logan noted that he could not speak to the cost effect of how the federal code was applied. CHAIRMAN GREEN pointed out that while he shared the concern expressed by Representative Rokeberg, that by the same token, it was an indemnity that the company would be getting in return for training some personnel to know what to look for. He expressed that it could be bad in the fact that all persons designated by a company would be required to receive training; however, by that training, those supervisors would be able to identify problem employees before they actually became a problem. REPRESENTATIVE ROKEBERG advised members that he would have no problem with the amendment if there was a means to limit the number of people who would be trained and performing the act of suspicion. He pointed out that to limit the number of supervisors required, it would also limit the cost effects and also not have everyone be the local in-house drug detective. Representative Rokeberg felt a limited number, or designated number of supervisors could be reflected in the amendment and that would reduce his concern to a great extent. MATTHEW FAGNANI, President, Allvest Laboratories, Inc., advised members that the training for supervisors was currently done both ways. He advised members that the Federal Department of Transportation, Federal Highways Administration had amended their rules approximately 18 months ago to include all supervisors who had supervisory authority over employees to receive the training. He pointed that they follow the Federal DOT for guideline purposes to establish policies, such as HB 207. Mr. Fagnani advised members that the supervisors would only be required to undergo the training one time, and did not require recurrent training, while others did. MR. FAGNANI pointed out that the training methods varied. He advised members that he taught a class of 35 people that afternoon where each paid $69 to sit in a two hour training class. Mr. Fagnani noted that there were also video tapes available that could be repeatedly shown to all new supervisors. He did not believe it would be a huge financial burden on the companies, but the idea was that someone within the company undergo training to identify when there was reasonable cause to suspect in the workplace. Number 2382 CHAIRMAN GREEN suggested amending Amendment 3 by deleting the word [all] on line 1 of the amendment, and insert; at least one designated [to] person shall, and delete [designated to supervise employees], and on line 6, delete [supervisors] and insert designee(s). The amendment would then read: Each employer shall ensure that at least one designated person shall receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the designee(s) to determine whether reasonable suspicion exists to require an employee to undergo testing under 23.10.630. REPRESENTATIVE ROKEBERG advised members that anything that would clarify the language and limit the number of supervisors required to undergo the training he would go along with. He pointed out that $69 for a 2 hour session, plus the individual losing 2 hours of employment time could result in a cost of over $100 per person, and pointed out that there was a definite economic impact. CHAIRMAN GREEN advised members he certainly understood Representative Rokeberg's concern, and agreed. REPRESENTATIVE ROKEBERG moved a conceptual amendment that would limit the number of people designated, unless the Chair was satisfied with the language he proposed. CHAIRMAN GREEN felt the amendment to Amendment 3, as he stated it, would accomplish the concern that was being expressed. TAPE 97-53, SIDE B Number 000 REPRESENTATIVE ROKEBERG agreed with the amendment to Amendment 3, as recommended by Chairman Green. There being no objection, the amendment to Amendment 3 was adopted. CHAIRMAN GREEN asked if there were any objections to Amendment 3. Representative Rokeberg removed his objection to Amendment 3. There being no objection, Amendment 3, HB 207, as amended was adopted. Number 033 REPRESENTATIVE JAMES pointed out that Mr. Logan had stated, prior to the recess, that he would explain the bill, and she did not know why the committee was addressing the issue. REPRESENTATIVE CROFT stated that because members were late for evening meetings, if it would be the Chair's desire that Mr. Logan provide further explanation at a later date. REPRESENTATIVE JAMES questioned whether they were addressing tort reform, in some respect, with HB 207. CHAIRMAN GREEN stated that it was not, that it was a drug test to provide for a safe workplace. REPRESENTATIVE JAMES asked if the bill was introduced to provide protection for employers. CHAIRMAN GREEN advised members that it would protect the employer from litigation from drug testing its employees. REPRESENTATIVE JAMES asked if the proposed legislation was a bill that put more government in the lives of the public. CHAIRMAN GREEN stated that it was not, that it put the burden on the employer to conduct his own drug screening for the immunity he would gain by having a posted, outlined drug program. REPRESENTATIVE CROFT stated that he had some concerns he would like to express also.
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