Legislature(1997 - 1998)
04/04/1997 03:25 PM House L&C
| Audio | Topic |
|---|
* 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 1765 CHAIRMAN ROKEBERG announced the next item on the agenda would be HB 207, "An Act relating to employer drug and alcohol testing programs," sponsored by Representative Green. Number 1781 JEFF LOGAN, Legislative Assistant to Representative Joe Green, Alaska State Legislature, came before the committee. He said Ronald Jordan, a businessman in the drug testing industry, had contacted a number of legislators with copies of model legislation other states have adopted. Representative Green discovered that HB 522, Representative Kott's bill from last session, dealt with this same issue. Representative Kott chose not to pursue this type of legislation, so Representative Green sponsored HB 207. MR. LOGAN commented that 100 companies in Alaska support this bill as well as the Alaska State Chamber of Commerce, representing 7,000 companies, the Alliance, representing about 400 companies, and the Alaska Trucking Association. MR. LOGAN explained that this legislation offers a carrot, but also holds a stick. The bill offers indemnity to employers against certain types of legal action if they will institute a drug policy. This type of legislation has been introduced in several states. On March 25, the Governor signed this same bill into law. Utah and Arizona have this law. States are adopting this type of legislation because of federal requirements for drug testing. This bill establishes a state policy on drug testing. Number 1964 MR. LOGAN stated that Section 1 prohibits an employee from suing an employer as long as the employer's action is based on a good faith, positive drug or alcohol impairment test. Employers are required to institute a drug and alcohol abuse policy in order to receive this indemnity. Page 3, under employer policy, it lists those things that an employer must do in order to be granted this indemnity. He said one thing that is included as one of the requirements for employers is not only that they have a written policy, but that they follow procedures that are of the highest standard in the industry. Page 4 states how the samples must be collected, treated and tested. In the middle of page 5, testing procedures are listed and what has to happen. At the bottom of page 5, it states, "For employees, drug testing must include confirmation of a positive drug test result." Number 2041 MR. LOGAN said one of the questions that often comes up is, "What happens with a false positive?" If a positive test occurs that test has to be confirmed by a different process other than the test that was initially used. The top of page 6, disciplinary procedures, describes the rights of the employer and employee. If a positive test occurs, the employer is allowed to take adverse employment action, including termination of that employment. Under confidentiality of results, the bill talks about how these results have to be kept confidential. The top of page 7 deals with the possibility of a collective bargaining agreement. It states that if there is a component to a collective bargaining agreement that is not part of HB 207, then the employer still gets the full benefits of this bill. The rest of the bill deals with definitions. Number 2128 MR. LOGAN commented that in discussions with industry and people from labor organizations, the sponsor has agreed to make number of small but important changes. He said Amendment 1, on page 3, line 23, following "used", insert ", including an employee's right to a confirmatory drug test to be reviewed by a licensed physician or doctor of osteopathy after an initial positive drug test result in accordance with AS 23.10.640(d)". On page 6, line 2, following ".", insert "An employer may not rely on a positive drug test unless the confirmatory drug test results have been reviewed by a licensed physician or doctor of osteopathy. The physician or osteopath shall (1) contact the employee, within 48 hours, and offer an opportunity to discuss the confirming test result; (2) interpret and evaluate the positive drug test results for legal use; (3) report test results that have been caused by prescription medication as negative." There are two sections being addressed in Amendment 1, the first is the written policy of the employer and the second is in the testing procedures. Number 2214 MR. LOGAN stated that the new language says that in order to prevent an adverse employer action against an employee, if there is a positive test result, the test has to be proven to be correct and that there is not a good reason why the test is positive. A medical review officer, a licensed physician or doctor of osteopathy, would contact the employee to discuss the confirming test result which would provide an opportunity for the employee to explain the result. The doctor must interpret and evaluate the drug test results for legal use. If the doctor feels it was a false positive test then they will report it as a negative result to the employer. Number 2341 CHAIRMAN ROKEBERG said he feels that Amendment 1 does not provide a procedural step other than the assumption that a physician would review the test. Number 2360 MR. LOGAN responded that the sponsor is satisfied with the implication of the amendment language. Number 2381 CHAIRMAN ROKEBERG asked if this doctor was hired by the testing service or the employer. Number 2397 MR. LOGAN answered that it could be a doctor on staff or a contracted doctor. He said the sponsor did not want to specify who the doctor had to be only that it had to happen. Number 2397 REPRESENTATIVE COWDERY made a motion to adopt Amendment 1. CHAIRMAN ROKEBERG objected for purposes of discussion. MR. LOGAN stated that someone from the testing industry was in attendance and they could give the committee a clearer idea of the chain of events. Number 2420 CHAIRMAN ROKEBERG withdrew his objection to the adoption of Amendment 1. He asked if there was a further objection to the adoption of Amendment 1. Hearing none, Amendment 1 was adopted. Number 2429 MR. LOGAN referred to Amendment 2, on page 4, line 24, following ".", insert "An employer may not initiate a testing program under AS 23.10.600 - 23.10.699 until at least 30 days after the employer notifies employees of the employer's intent to implement the program and makes written copies of the policy available as required by (a) of this section." Number 2434 REPRESENTATIVE HUDSON made a motion to adopt Amendment 2, for the purpose of discussion. Number 2452 MR. LOGAN explained that Amendment 2 is in response to an Alaska Supreme Court decision, Ludke v. Neighbors Drilling. The case involved an Alaskan company who initiated a drug policy, but did not give fair warning to the employees that the policy had been instituted. Amendment 2 gives the employee plenty of time to understand the new drug and alcohol policy. Number 2482 REPRESENTATIVE HUDSON again moved for the adoption of Amendment 2. Hearing no objection, Amendment 2 was adopted. TAPE 97-33, SIDE B Number 000 MR. LOGAN said Amendment 3, page 3, line 28, following "results", insert ", and the obligation of the employer to provide written test results to the employees within five working days of a written request to do so, provided the written request is made within six months of the date of the test". He said the current language of the bill allows room for an employer to delay giving the results of the testing. Number 046 REPRESENTATIVE HUDSON made a motion to move Amendment 3 for the purpose of discussion. Hearing no objection, Amendment 3 was before the committee. Number 052 CHAIRMAN ROKEBERG questioned the six month language. Number 056 MR. LOGAN stated that in discussions with companies, six months was determined to be the time frame in which employers would have something like this easily retrievable. After six months this information goes into a box and into storage. Number 089 REPRESENTATIVE HUDSON suggested that this information could be in a secondary office of a company. Number 094 CHAIRMAN ROKEBERG asked if there would be an objection to inserting language for a shorter period of time. Number 107 MR. LOGAN explained that they had conceived of a situation where an employee tests positive and goes into treatment. Number 117 REPRESENTATIVE JOE GREEN explained that the six month provision was included for the benefit of the employee. He said for a six month period after the five days that an employee has been notified, the employee would have six months to come back and make another request. Number 152 REPRESENTATIVE RYAN asked if it was possible for the employee to be retested in this six month period, in the possibility that a positive result occurred. Number 165 MR. LOGAN referred to the bottom of page 5, line 30, where it states, "the drug test must include a confirmation of a positive drug test result, and the confirmation must be done by a different process." Number 178 CHAIRMAN ROKEBERG asked if there was an objection to the adoption of Amendment 3. Hearing none, Amendment 3 was adopted. Number 185 REPRESENTATIVE COWDERY made a motion to adopt Amendment 4 for the purpose of discussion. Number 187 MR. LOGAN referred to Amendment 4, page 3, line 30, following ";", insert ", if the employee requests an opportunity to explain the positive test result within ten working days after the employee is notified of the test result, the employer must provide an opportunity, in a confidential setting, within 72 hours of receiving written notice, or prior to taking adverse employment action." This amendment gives the employee the opportunity, after a second test is done and after the doctor has verified the test as positive, to explain why the test was positive to the employer. He said the employer must provide that opportunity in a confidential setting. They have to go into an office where other employees can't hear what's going on. Mr. Logan stated it has to happen within 72 hours or prior to taking adverse employment action. Before an employee can be terminated, if they ask for a chance to talk to their boss, they get it and it has to part of the written policy. Number 252 CHAIRMAN ROKEBERG asked who was giving the written notice. Number 258 MR. LOGAN answered that the employee would be giving the written notice. CHAIRMAN ROKEBERG asked if this needs to be clarified. REPRESENTATIVE GREEN answered that it is specified on line 20. Number 272 REPRESENTATIVE HUDSON said as he read the bill, the employer provides the notice within five days after notification providing the minimum time of delay has passed. Once the employee has this notice, he has ten working days to have an opportunity to explain why the positive test results occurred. This is done in a confidential setting. Number 314 REPRESENTATIVE GREEN said this employee would have gone through all the tests and talked to the doctor. The employee then has ten days to request a discussion with the employer. The employer must provide that in a confidential setting within three days, 72 hours. Number 338 REPRESENTATIVE SANDERS suggested having the employee put this request in writing. It could come out to be the employee's word against the employer's word. Number 361 REPRESENTATIVE GREEN said that is reasonable and language could be inserted on line 29, "on the employee's written request". Number 370 REPRESENTATIVE HUDSON suggested a friendly amendment, "the employer requests, in writing, an opportunity to explain the positive test results in ten working days." REPRESENTATIVE GREEN said this was the same thing, either way is fine. REPRESENTATIVE HUDSON moved the amendment to the amendment, after the word "requests", add "in writing". CHAIRMAN ROKEBERG referred to line 6 of the amendment, and suggested a friendly amendment after, "receiving", add "employee's". CHAIRMAN ROKEBERG asked if there was further discussion to Amendment 4 and the modifications. Hearing none, Amendment 4, as amended, was adopted. Number 428 REPRESENTATIVE COWDERY made a motion to adopt Amendment 5 for the purpose of discussion. Number 435 MR. LOGAN referred to Amendment 5, page 5, line 10 and said it should state "page 5, line 11." So on page 5, line 11, following "employees", insert "and prospective employees". On page 5, line 13, delete the sentence beginning with "An employer is not..." On page 5, line 28, following "by the", delete "United States Department of Health and Human Services", insert "Substance Abuse and Mental Health Services Administration (SAMHSA). On page 5, line 29, following "American Pathologists", insert ", American Association of Clinical Chemists". On page 5, line 31, following "use of different", delete "chemical", insert "analytical", On page 6, line 2, before "chromatography mass spectrometry.", insert "gas". MR. LOGAN said that employers also pay for pre-employment testing. He said he contacted the National Institute of Drug Free Work Places and discovered that this is a common policy. In many states the employer pays for pre-employment testing. There is now language where the employer pays for employee testing. What Amendment 5 does is adds prospective employees. REPRESENTATIVE RYAN said he felt this bill interfered with the constitutional provision of not incriminating oneself and illegal search and seizure. MR. LOGAN said this amendment would not require the employee to pay for the testing. He said line 28 refers to the labs which are doing the actual testing. The highest level is a SAMHSA certified laboratory. He clarified that SAMHSA is located within the United States Department of Health and Human Services, but it was suggested that leaving in the name of the federal department in this language would be confusing. Number 672 CHAIRMAN ROKEBERG expressed concern about putting an acronym in statute. He offered a amendment to the amendment to delete, "SAMHSA" from Amendment 5 on line 10. Number 718 REPRESENTATIVE RYAN commented that the federal government has been known to change these things around and perhaps something could be added to indicate what the intent is so that it would not have to be revised. Number 734 MR. LOGAN stated that SAMHSA is a fairly new name of an older organization. The bill drafter's has explained that these name changes are dealt with in what is known as a "revisor's bill." This is legislation coming from the revisor of statutes when there are federal name changes. A revisor's bill goes through the legislature to clean up these kinds of things. In order to make sure that the laboratory testing the employee's sample is of the highest certification, he feels it would be good to keep this language. MR. LOGAN referred to page 5, line 29, and said there are a number of groups within the College of American Pathologists. The group that is the most qualified to do drug and alcohol testing is the American Association of Clinical Chemists. Number 832 MR. LOGAN referred to line 31 and said after there has been a positive drug test that test has to be confirmed. The confirmation must be by use of a different process. The bill currently says, "chemical process." He said he would like to change that to "analytical process." The reason is that the first test was a chemical test. There is some fear that if the second test is also a chemical test, you could get the same result. The next amendment actually goes to the top of page 6, where it says, "The second or confirmatory drug test shall be a chromatography mass spectrometry." That should be changed to read "gas chromatography," which is not a chemical process at all, but a process where there is a molecular breakdown. Number 900 REPRESENTATIVE HUDSON made a motion to adopt Amendment 5. Number 917 REPRESENTATIVE SANDERS objected for a question. On page 5, line 13, the deletion of the sentence "An employer is not required to pay the cost of drug testing for prospective employees." He said he had thought that if a prospective employee tested negative, then the employer might be willing to pay for the test. Over the last year, there have been several times where employees have quit their jobs because they feel it is an infringement on their rights to have this type of testing. He said he doesn't think he would pay to prove to a prospective employer that he doesn't take drugs. Number 994 CHAIRMAN ROKEBERG asked the sponsor's opinion on his suggestion of not deleting the sentence starting on page 5, line 13, but deleting the word, "not". Number 1037 REPRESENTATIVE GREEN explained that taking out the "not" would require employers to pay for the tests. Number 1064 CHAIRMAN ROKEBERG stated that if the employer is going to mandate a drug test then he should pay for it. Number 1112 REPRESENTATIVE GREEN indicated he agrees to this change. REPRESENTATIVE RYAN said he agrees with the chair. Number 1134 CHAIRMAN ROKEBERG referred to line 11 and said the mandate is there that they would pay for the tests. Number 1151 REPRESENTATIVE HUDSON said eliminating "not" essentially commits the small businesses, if they want to have a drug free employee to pay for the test. REPRESENTATIVE RYAN said the bill will give businesses a release of liability which defers the disadvantage of paying for the testing. Number 1265 CHAIRMAN ROKEBERG said, "There is a motion on the table to move Amendment 5." REPRESENTATIVE SANDERS questioned if it is as amended. CHAIRMAN ROKEBERG responded, "It's amended as to the acronym only, deletion. Oh, and line 11, yeah. Now I'll leave that alone right now." REPRESENTATIVE SANDERS said, "(Indisc.) the whole sentence." CHAIRMAN ROKEBERG said, "Because the perspective employee is above it, Representative Sanders, includes that. I mean that's what it does, it's already included. We're not changing the meaning there. We're just changing the drafting (indisc.). By putting the sentence back and taking that out, it would just change the drafting, it wouldn't change the meaning. Are you with me?" REPRESENTATIVE SANDERS said, "So if you pass the amendment you are putting the sentence back - taking the `not' out. Is that what you're saying?" CHAIRMAN ROKEBERG said, "We're taking the whole sentence out, but it has the same effect because a perspective employer is above the -- requires the employer shall pay for the entire actual cost of that. On line 2 of the amendment, by inserting prospective employers after - on line 11." REPRESENTATIVE SANDERS questioned by putting that in there it covers it. CHAIRMAN ROKEBERG said that is correct. REPRESENTATIVE HUDSON clarified that they are removing the very last sentence, "An employer is not required to pay the costs of drug testing of prospective employees." CHAIRMAN ROKEBERG stated that hearing no further objections, Amendment 5, as amended, was adopted. Number 1322 REPRESENTATIVE COWDERY made a motion to adopt Amendment 6 for the purposes of discussion. Number 1330 MR. LOGAN said Amendment 6, page 3, line 2, following "...is voluntary.", delete "A person may..." to "...23.10.699." He said the program is a voluntary program. The bill does not mandate drug and alcohol testing. He referred to page 3 and said upon reading the bill, it occurred to the sponsor that it frees any employer from liability, whether or not they have a drug and alcohol testing policy. CHAIRMAN ROKEBERG stated that he had this same concern. He said for clarity purposes, the deletion starts on line 2 of page 3 and goes through line 5. The entire sentence is deleted. Number 1441 REPRESENTATIVE HUDSON reiterated the motion to adopt Amendment 6. Hearing no objection, Amendment 6 was adopted. Number 1462 REPRESENTATIVE RYAN stated a potential conflict. He informed the committee he and his wife are major shareholders in a corporation that owns a medical practice where class 3 and class 4 controlled substances are dispensed as well as constituting a family practice where drug testing is done. Number 1542 JOHN WHEATLEY, Vice President of Policy, Support Industry Alliance, testified next via teleconference from Anchorage. The Alliance has over 300 member companies and individuals participating in petroleum mining and resource development in the state of Alaska. He was in support of HB 207. The Support Industry Alliance believes that the legislation will greatly reduce an employer's liabilities from drug and alcohol testing resulting from a positive test result. This legislation will help protect the employee by establishing a company policy and standardized procedures for testing. This bill is not a mandatory statute, but if an employer wants the protection of the statute then they may implement the policy. The Support Industry Alliance supports HB 207; they believe it is a positive step towards improving the business environment in the state of Alaska. Number 1696 RONALD JORDAN, Owner, Medical Specimen Services, Incorporated, was next to testify via teleconference from Anchorage. He said his business provides services everything from the oil industry, the aviation industry to pawn shops and check cashing places. He stated he is in support of HB 207. He said he likes the amendments that have included. A uniform drug testing policy in the various industries will allow the employee to rely on confidentiality and professionalism all through the industry. The use of a medical review officer is important to maintain confidentiality. Drug testing will create more drug free work places in Alaska. This bill creates some guidelines for implementing a policy. Alaska has a higher positive rate for illegal use of drugs and a rather high accident rate. He said he feels that if employers had some true guidelines with which to work, they would be able to have a drug free workplace. He said he supports the amendment and the bill. Number 1918 CHAIRMAN ROKEBERG asked Mr. Jordan if he has had a chance to speak to Mr. Logan or see the amendment that was offered in response to his letter. MR. JORDAN indicated he spoke to Mr. Logan. CHAIRMAN ROKEBERG asked Mr. Jordan if the requirement to have a secondary confirmation test using a gas chromatography mass spectrometer would create a burden on his business. MR. JORDAN answered that this test is used with all of their clients. It is called non-regulated drug testing under the non- (Indisc.). They use the gas chromatography mass spectrometry method because it provides absolute answers. Using this test and a medical review officer benefits both the employer and employee. Number 1918 CHAIRMAN ROKEBERG asked if the requirements for laboratory approval or certification is a burden or if it is an adequate inclusion. Number 1935 MR. JORDAN stated that the provisions are adequate. The federal government is looking at non-regulated laboratory certification. CHAIRMAN ROKEBERG asked if his laboratory is approved. MR. JORDAN said that his business does not have a laboratory, they act as a collection site. The laboratories used are SAMHSA certified or (Indisc.) by the United States Department of Health and Human Services. CHAIRMAN ROKEBERG asked how many of those laboratories are in Alaska. Number 1983 MR. JORDAN answered that there are no SAMHSA certified laboratories in the state of Alaska. Number 1992 CHAIRMAN ROKEBERG commented that the identification and transportation of these samples are a very important process. MR. JORDAN stated this his business works with laboratories from Seattle to North Carolina. They use express airborne or postal carriers. There is a chain in custody that follows each and every specimen. His business works with people on an individual basis. Number 2077 RANDY RUEDRICH, Chairman, Independent Association of Drilling Contractors, was next to come before the committee. He stated that his association has approximately 700 employees in the state. The association has used a pre-employment and random drug testing system since the late 1970s. In the mid 1970s, a typical loss time accident frequency in their industry was 25 people per 100 people who had to leave the job site because of an injury. By the early 1980s, that number had been reduced to 18 and in 1988, it went below ten people. Today that accident frequency is 1.6 people. One of the substantial things the association did was implemented a drug testing policy which looks after the individual employee, his fellow employees and the equipment with which they work. These actions make the business more efficient and improves performance. The association pays for the drug testing and it produces huge benefits. The bill, as drafted and amended, is good and will encourage other employers in the state to do the same thing for their work place and for their employees. Number 2208 REPRESENTATIVE COWDERY asked if people receiving a certified driving or professional driving license are required to take a drug and alcohol test. Number 2230 MR. RUEDRICH said that requirement would be outside the realm of his association's employees. Number 2256 REPRESENTATIVE RYAN asked if people who operate heavy equipment, such as crane operators, are required to have physical examinations and/or drug testing. MR. RUEDRICH answered yes, to the extent that some of the companies which assist his business in moving equipment and rig moving do have the same type of requirements. Essentially, everyone on the job site has been subject to two, relatively rigorous, random tests. Number 2316 CHAIRMAN ROKEBERG stated that CSHB 207(L&C) provides for both adverse employer action and counseling\rehabilitation for employees. He asked what his association did when someone was found to have a problem. Number 2353 MR. RUEDRICH explained that if it is a first time event, after they are discharged from employment, the former employee is allowed to participate on a partially funded rehabilitation program and are eligible for rehire after their termination time has ended. The length of termination depends on the severity of their rehabilitation requirements. He said there is a zero tolerance on employment but there is an opportunity to rehabilitate and return. CHAIRMAN ROKEBERG asked how successful this program is. MR. RUEDRICH could not speak on behalf of the whole association. He said a number of employees have come back and have done quite well. The association views it as a positive expenditure of funds to include this in their medical insurance program. CHAIRMAN ROKEBERG asked if this includes alcohol testing. MR. RUEDRICH stated that any alcohol impairment on the job takes an employee off the payroll for a minimum of six months. CHAIRMAN ROKEBERG asked about hangovers. MR. RUEDRICH answered that, if it was noticeable, they could not go to work. On the North Slope, the employees live in camps where alcohol is not allowed. TAPE 97-34, SIDE A Number 0000 MATTHEW FAGNANI, President of Allvest Laboratories, a subsidiary of NANA Development Corporation, came before the committee. He said drug testing began as a result of an train crash in 1987. Following that accident, the Conrail brakeman and engineer both tested positive for marijuana use. A coalition was formed, due to public demand, which led to Senator Holling and Senator Danforth submitting a bill. This bill mandated drug testing of all Department of Transportation industry employees in safety sensitive positions. Pre-employment testing, post accident testing, reasonable cause testing, random, follow-up and return to duty testing are required for the trucking, pipelines, airlines, railroads, marine and nuclear industries. MR. FAGNANI stated that the next major change to occur to this bill came in 1991, when Congress approved the Omnibus Employee Testing Act. This act required the Department of Transportation to propose additional regulations, including the testing of alcohol and who would be tested under this regulation. This act resulted in an additional 7 million transportation workers nationwide being included in the mandatory drug testing. MR. FAGNANI said the omnibus act mandated the inclusion of intrastate commercial driver's license operators, school bus drivers, state and municipal commercial driver's license holders, which include truck drivers and grader crews, and community activity bus drivers. According to the Alaska Department of Labor, as of July of 1993, Alaska had 599,200 residents. Out of that total, 277,991 were currently employed and over 53,000 Alaskans are mandated to test through the federal requirements. He stated that 19 percent of our employed population is in mandatory drug and alcohol testing programs by the federal government, or 8.8 percent of the total state population. This information does not include all of the non-regulated industries which have chosen to test such as hotels, ski resorts, pawn shops and gas stations. Many Alaskan companies have realized the benefits of drug testing. Drug testing will help safety, employee productivity and job efficiency. MR. FAGNANI stated that according to the national institute on drug abuse, 10 percent or 23 million Americans are abusing drugs, 6 million use cocaine, 10 percent to 15 percent of all highway fatalities involve drug use and an employee who uses drugs is 3.6 times more likely to be involved in a near miss or accident while on the job. The most recent U.S. household survey, conducted by the Clinton Administration, showed that teen marijuana use was on the rise. Alcohol and drug testing in the work place is here to stay. As testing becomes more prevalent in the work place, it is very important that companies do it right. MR. FAGNANI said he supports the legislation. He said the testing criteria has come so far that we don't have to be afraid of false positive tests. The laboratory that Allvest uses has conducted 2.5 million tests since 1995, and has not had a false positive test. He said the screening is done by an antibody, antigen reaction and then there is the gas chromatography mass spectrometer which is a physical principle test - a molecular test, which gives a fingerprint of the drug that tests positive. The use of the physician helps insulate any possible problems. The technology is there to assure employers and employees that the testing is done right. MR. FAGNANI stated that this bill sets out policy. He said he knows of several customers who have been sued by their employees. The cases rarely, if ever, get to court. Yet an employee can pursue this case to the Alaska Supreme Court and then the companies are forced to pursue it as well while expending a large amount of resources. This bill sets up a policy which employers can follow and protects the employee by: using a SAMHSA certified laboratory, having collection procedures which are spelled out and understood, using a medical review officer to review results and then advising the employee of the policy. Number 0599 REPRESENTATIVE RYAN asked if litigation has been raised concerning the constitutionality of drug testing policies. Number 0624 MR. FAGNANI answered that this issue has been addressed at the federal level. In each and every case, drug testing has withheld the court's scrutiny. In Alaska, there have been two decisions, Ludke v. Neighbors Drilling and the ERA case. In Alaska, private employers are allowed to test based on a safety sensitive need. The public employees have a different requirement. He said there are several providers of this type of testing and two are in Fairbanks, four or five are in Anchorage and countless national labs competing for the marketplace. Number 0718 CHAIRMAN ROKEBERG asked if this bill is a substantial improvement over the previous bill, HB 522. MR. FAGNANI stated that it is an improved version. He noted the inclusion of collective bargaining. Number 0787 BARBARA HUFF-TUCKNESS, Director of Legislative and Government Affairs, Teamsters Local 959, stated that her union represents about 6,000 members. They have existing collective bargaining agreements throughout the state with various employers with attached drug and alcohol testing policies. She stated that every truck driver has been tested. This bill grants limited immunity and her union is concerned, from a legal perspective, that the employee would still have the right to sue if they believed that there were violated provisions. She questioned who would make the decision whether or not the employer followed a provision in the collective bargaining agreement. She said, as a collective bargaining participant, there is an ability to file a grievance and go through an arbitration process. A neutral third party reviews the information and makes a decision based on information brought from both sides. She questioned who made the determination that the employer could not be sued. Number 0979 MS. HUFF-TUCKNESS said she wasn't in attendance to argue against drug testing because her industry is heavily regulated. They represent truck drivers, hospital workers and members of the airline industry. She said her union has a lot of unanswered questions. She referred to Sections 23.10.600 and 23.10,610, which covers the limited immunity provisions for an employer who decides to participate or implements a drug and alcohol testing program. A list of concerns and issues should be addressed in an employer's drug testing policy. Under a collective bargaining agreement, months are spent negotiating what those provisions are. MS. HUFF-TUCKNESS said she has heard that this is an attempt to legislate the policies and procedures that employers are going to implement so that everybody is testing in the same or in a similar manner. She stated there are drug testing policies that are applicable to each one of the employers and the particular industry with which they are dealing. Some are on a random testing basis and are private employer representatives, this is completely different from the public sector. This bill seems to cover both the public and private sector employers. There are certain constitutional rights, from a public employee perspective, which need to be addressed as the bill goes through the process. She stated that her union also represents employees in the public sector where there is drug and alcohol testing provisions in those labor agreements. Number 1166 MS. HUFF-TUCKNESS asked why the legislature didn't include a provision in the tort reform bill which would state that employers can't be sued by employees because they enact a drug or alcohol testing program if they think an employer should be immune from a libel suit if they have done everything that they are alleged to do under that policy. The issues around drug testing are going to involve the drug testing company themselves. Theoretically, this bill could be separated. Under 23.10.600 (d) and 23.10.610, if there was non-conformance with the particular requirements, then it would allow the employee to sue. A higher court could rule that this particular law was not violated and, therefore, there was not standing to the employee's lawsuit. MS. HUFF-TUCKNESS said to craft a bill under the guise that the employer is going to be immune from those lawsuits creates concern. She questioned what would happen if there was no collective bargaining agreement in place. The employer could negotiate to impasse the collective bargaining agreement with the exception of this particular drug and alcohol testing program. The employer then implements its own particular program to garner this particular immunity. She questioned whether taking out this impasse provision dissolves this particular legal state requirement to craft drug and alcohol testing language. If the legislature or state government is going to start drafting drug testing policies, then isn't it the responsibility of the employers, as well as those who participate in a collective bargaining agreement, to implement this type of policy. Number 1435 CHAIRMAN ROKEBERG referred to the provision on page 7, 23.10.670, which says that even if the collective bargaining agreement is not consistent with CSHB 207(L&C) as the employer would still get the full benefits of the bill. Number 1481 MS. HUFF-TUCKNESS stated that this area of concern has been raised by her attorney. The attorney received a faxed copy of the bill and has not had the opportunity to ascertain the impact of the drug and alcohol testing program on those existing collective bargaining agreements. The language of the section, referred to by the chair, does not have language to gain that benefit. Number 1522 MS. HUFF-TUCKNESS said a reference should be made to employee notification of what they are being tested for when they take the test if the drug and alcohol testing program reference is going to remain in the bill. She said the levels are set by federal regulations. The lack of reference to the testing level could result in a zero tolerance. She said she is happy with the inclusion of a medical review officer who would interpret those results and would be in a position to prevent any potential violations of confidential information. The information would be limited to those individuals with a need to know. The bill also addresses reasonable suspicion, but does not define what constitutes reasonable suspicion. The bill does not address the training under the federal rules or regulations. A supervisor is required to be trained to detect or to recognize reasonable suspicion or situations on the job which might cause an employee to be tested. MS. HUFF-TUCKNESS concluded that the union is a strong supporter of a drug and alcohol free workplace. This testing has had a positive impact on those work situations. She said drug testing is not new and she wants to assure the committee that they are not opposed. Ms. Huff-Tuckness said they felt serious consideration should be given to the true intent of this bill and the impact that it will have on every public and private sector employer in Alaska. Number 1740 REPRESENTATIVE RYAN asked if someone, from her perspective, would be coming forward with specific recommendations. Number 1765 MS. HUFF-TUCKNESS informed the committee she has discussed some of these issues with Mr. Logan. The direction of the bill is a concern from a legal perspective. She said her attorney has raised some concerns regarding the impact on the public and private sector employees due to the constitutional differences. She requested that more time be spent on this in light of some of the substantial changes which have been made from the previous bill, HB 522. Number 1814 REPRESENTATIVE RYAN asked if she understood the employer concern over arbitrary lawsuits. He discussed the hardship on businesses. He said he feels that something needs to be put in place which shows that if a business presented a good faith effort, then they should have a limited sense of liability. Number 1881 MS. HUFF-TUCKNESS said she feels there had been an effort to limit these lawsuits. She said if this immunity is the intent of CSHB 207(L&C), then some focus should be put on that. The attorney is concerned that the employer might not be completely protected. If questions come up regarding the drug and alcohol testing then it is addressed in the collective bargaining agreement. Only five or six cases have been raised regarding this particular area. Number 1954 PAM La BOLLE, President, Alaska State Chamber of Commerce, stated that her organization is in support of this bill and the amendments which have been adopted. She noted they have submitted a letter located in the committee files. Number 1996 REPRESENTATIVE SANDERS expressed a desire to hold the bill over. He said he is not opposed to the bill or its intent. He said he wants to hold it over in order to ascertain if this bill does what it proposes to do in the sponsor statement. CHAIRMAN ROKEBERG asked Mr. Fagnani why they didn't test blood. MR. FAGNANI said the urine test is much more sensitive and less intrusive. CHAIRMAN ROKEBERG stated that CSHB 207(L&C) would be held over.
| Document Name | Date/Time | Subjects |
|---|