Legislature(1997 - 1998)
05/07/1997 01:07 PM Senate L&C
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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 & ALCOHOL TESTING PROGRAM
CHAIRMAN LEMAN called the Senate Labor and Commerce Committee
meeting to order at 1:07 p.m. and announced HB 207 to be up for
consideration.
MR. JEFF LOGAN, Staff to Representative Joe Green, said this
legislation attempts to establish the first policy in the State of
Alaska on drug testing. Currently around 55,000 Alaskans are
tested for the presence of drugs or alcohol in the workplace. Some
of that testing is due to federal regulation and some is due to
good business practices.
The concept in the bill is to offer employers a certain limited
immunity from certain types of legal action in exchange for
implementing procedures and policies dealing with drug testing.
The sponsor has adhered to the highest standards he can find from
other states.
The first immunity is that an employer may not be sued for actions
in good faith based on a positive drug or alcohol impairment test.
He may not be sued for the failure to test for drugs or alcohol
impairment or the failure to test for a specific drug or another
controlled substance.
MR. LOGAN said that a person may not bring action against an
employer for defamation of character, lible, slander, or damaged
reputation based on a drug or alcohol test with a few exceptions.
If the employer needs to divulge the test information, they cannot
be sued.
He said that section 23.10.615 may be one of the more important
sections of the bill. It states that compliance with these
provisions is voluntary and he pointed out that no one would be
hurt by the bill.
CHAIRMAN LEMAN asked how they voluntarily comply. MR. LOGAN
replied that they comply be meeting the provisions of the bill.
The first thing they must do is establish a policy which has to be
written and posted or accessible to the employees. The bill lists
what issues need to be in the policy and the consequences of
refusal to participate in a test and what adverse personnel action
may be taken as a result of the test. It is the right of the
employee to get written test results.
MR. LOGAN said they had worked with employer and employee groups on
their rights and needs and Representative Green had amended this
bill 15 times. One of the provisions they requested is that they
have some time to deal with the tests and results. An employee
should be given time to explain in a confidential setting the
results of a positive test and no adverse employment action should
be taken until then. The employer may require the collection and
testing of a sample of an employee's or prospective employee's
urine or breath, but it has to be consistent with a job related
purpose. The policy has to be specific as to which employees or
positions are subject to testing so employees know up-front who is
going to be tested.
Number 150
CHAIRMAN LEMAN asked why they would want to state that this bill
may not be construed to encourage on-site testing. MR. LOGAN
replied that they didn't intend to deal with on-site testing in the
bill and they wanted that clear to everyone.
MR. LOGAN said the accuracy of the test used is the highest
standard in the U.S. and possibly the world. Nationwide there are
71 laboratories that they can send the samples to.
SENATOR HOFFMAN asked if there were any in Alaska. MR. LOGAN
replied no. He said they allow laboratories approved by the
College of American Pathologists, American Association of Clinical
Chemists to perform the test, the second highest standard. If
there is a positive test, it must be confirmed using a different
analytical process than the initial test which is generally a
chemical process. The second test they require to be a gas
chromatography mass spectrometry. The employer may not rely on a
positive test until the confirmation test has been done.
MR. LOGAN said page 7 dealt with disciplinary procedures.
CHAIRMAN LEMAN asked if there was a medical reason for restricting
review of the drug tests to a licensed physician or doctor of
osteopathy. MR. LOGAN replied that the reason is because those
types of medical professionals are the only ones deemed by their
profession to be qualified to interpret the results.
Number 281
SENATOR MACKIE asked if a company in the rural areas of the State
wants to have drug testing, do they need to bring in a doctor to do
it. MR. LOGAN explained that the bill is not based on one piece of
model legislation, but is the best parts of several and the
remoteness of Alaskan workplaces was a concern. That's why
compliance with the bill is voluntary and is not to be construed to
encourage, discourage, or restrict on-site testing.
SENATOR MACKIE explained that his concern was for rural employers
who wanted to participate in this program for safety reasons and
they are not allowed to do it with a health aide or PA which are
common in rural areas of the State. He asked why a doctor has to
give the urine test.
MR. LOGAN clarified that there is no requirement that a physician
collect the sample. The only place the physician enters into the
bill is after there has been an initial test that was positive. It
is then confirmed by a different analytical process. Then it goes
to the doctor to ask the donor if there is a valid medical reason
for the positive. There is no requirement for the doctor to be in
the rural area in those cases; he could do it by telephone, CB, or
other communication device.
Number 310
SENATOR HOFFMAN asked what the typical test would cost. MR. LOGAN
said another person would testify later on that issue.
MS. SHAREN LINFORD, Human Resources Manager, Osborne Construction,
said this bill came to her attention 10 days ago. She said they
had been doing drug testing for several years because they feel it
makes a safer work place and is part of being a responsible
employer. Their program includes every employee at the company
from the president on down. Current employees are subject to 10%
testing, both management and labor, once a month. Their statistics
show that 20% of construction workers are drug users. They have
been using a field test kit that is basically a cup and a restroom
with a management person administering the testing.
They like the speed with which you get results and the ability to
be able to make an employment decision immediately. Prior to doing
this, they had to collect the samples, send them in by DHL to a
laboratory, wait up to three or four days or longer if it was a
weekend, then they could tell the employee if they could come to
work or not.
Their procedure, if there is a positive, is to first give the
option for a second test right away. If that's positive or if they
skip the option, they will send the sample to a laboratory and
follow up from there.
She said they have had very good success with their program. Their
concern is that unless they follow all the hoops in this bill, they
are subject to more litigation. They have heard that the bill
claims to have the highest standards and would be impractical for
companies working in rural areas of the State.
Number 433
CHAIRMAN LEMAN said he agreed with her regarding field testing and
the confirmation test, only if the employee disagrees with the
initial test, but it's not obvious to him why she suggested
deleting paragraph (e).
MS. LINFORD explained that they rely on the commercially available
kit to have already established a level of the drug to be tested
for. CHAIRMAN LEMAN said he thought that paragraph probably
remains valid for lab testing, although not for the field.
Number 470
MR. FRANK DILLON, Executive Director, Alaska Trucking Association,
supported HB 207 because it indemnifies people who have no
influence over a result from the liability. There are tens of
thousands of people who are mandated by federal law and through
federal regulation to be in drug testing. They have been in a
mandated program for the last six years, although many companies
have done drug testing for the last 20 years.
The mandated program has set up a rather intricate system of checks
and balances that is designed to ensure that when samples are taken
and tests are conducted, that those tests are extremely accurate
and very unlikely to be false positive. In this day and age, a
positive drug or alcohol test can be the absolute ruination of a
person's life. Industry people feel very strongly that they do not
want impaired drivers or anyone else working there. They also
understand that when you're going to deal with somebody's
livelihood and perhaps their potential livelihood for the rest of
their lives that you have to be very careful when you tell them
they have a problem.
They have no problem at all with on-site testing. It is a good
screening method, but it does not provide the kind of
accountability and degree of scientific precision that should be
involved when you are making a decision over someone's livelihood.
He said when they have followed all the rules and sent the urine
off to a prescribed laboratory for a test, at that point the
companies' liability ceases in terms of a false positive report.
MR. DILLON said when you conduct a test on-site, you become the
laboratory. It is an excellent screening mechanism that employers
should be able to use. However, it is only an indicator as far as
its scientific degree of accuracy. Therefore, they don't believe
it should have immunity in the same way HB 207 allows immunity for
people who have accepted the responsibility of being in a program
where they have no control over the results of a false positive.
He did not think passage of HB 207 would have an adverse affect on
anyone's operation. What it does not do, and what he believes
should not do, is indemnify people who in the field conduct tests
and have control over those tests from reporting those results.
MR. DILLON said they want the focus of the bill to be on punishing
the people who actually don't do their job correctly.
Number 531
SENATOR MACKIE asked if he had specific language. MR. DILLON said
the bill may not solve all the problems in the drug testing area,
but it clearly helps companies that have no control over test
results that are reported back to their employees.
CHAIRMAN LEMAN said he thought there was a way to deal with the Ms.
Linford's and Mr. Dillon's concerns and he asked them to talk to
staff to see what could be worked out.
MR. KEN JACOBUS, Attorney, Vital Sign Diagnostics, said they
manufacture the on-site sample testing kits. He suggested removing
drug testing at a certified laboratory provision from section (c)
and inserted into section (d). This will make it clear that on-
site testing is permitted and only confirmatory testing must be
done at a certified laboratory. As the bill reads now it appears
that all testing has to be done at a certified laboratory including
testing of samples that are supposed to be on-site.
CHAIRMAN LEMAN said sometimes the employee may agree with the first
result and not want to contest it and asked him to comment on Ms.
Linford's suggestion of confirmation, instead of being mandatory
being at the request of the employee as a way of keeping costs
down. MR. JACOBUS said it should be an employee option.
MR. MATT FAGNANI, President, Allvest Labs, said they perform third
party administration for over 1,400 Alaskan companies currently
doing drug and alcohol testing in various forms within the State of
Alaska. He said there are over 53,000 Alaskans covered by
mandatory federal drug and alcohol testing laws which include
preemployment, post accident, reasonable cause, return to duty, and
follow-up testing. There are established cut-off and confirmation
levels by the Department of Health and Human Services. The on-site
testing industry is trying to mirror the U.S. Department of Health
and Human Services by putting out products that are at those same
cut-off levels.
MR. FAGNANI said that drug testing has come a long way and it
upsets him to hear some of the testimony about on-site test kits.
He explained that about 10 years ago laboratories actually did on-
site testing and his was the last to close because of the cost of
becoming a SAMSHA certified lab and the marketplace in Alaska was
insurmountable for them to operate. They decided to get into third
party administration where they broker out the services of other
labs and other medical review offices to review test results.
When they did testing in Alaska they did double screen tests where
they screen a sample. An on-site test kit is only a screening
test. The screening test is only 96% accurate.
TAPE 97-24, SIDE B
To talk about not confirming out an employee's preemployment on-
site test is wrong. If on-site testing has to be put into this
bill, then confirmation testing must be done on all positive
samples to rule out that 4% and to rule out prescription drug use.
He spoke with an attorney with the Institute For a Drug-free
Workplace who agreed. Without a positive test result the companies
that are doing on-site testing are not adequately protecting
themselves from future litigation.
The other thing he has against on-site testing is that this is a
brand new industry. On-site tests have just been coming into
popularity with technology that has met some of the muster. Drug
testing started in the early 70s with the military testing for
marijuana. The technology was very expensive then, but now it is
very common. The other problems with on-site test kits is that
they don't have adulteration prevention techniques. A person can
go in the bathroom and use hot water or Mountain Dew and get the
temperature strip to activate on the test and it would test
negative.
He said he called his lab this morning and asked how many samples
they analyze that have low specific gravities (a person flushing
their system) and they answered out of a batch of 36 they have two.
If there is a 6% positive rate for preemployment for marijuana,
cocaine, amphetamines, opiates, or PCP, which is what Alaska has
now, and those tests aren't being confirmed there would be a major
problem. Some of those tests are prescription related and if you
add the adulteration prevention techniques, the lab can detect many
of them.
The standards they follow are put out by the Department of
Transportation and this bill uses a lot of the federal guidelines
for drug testing. Hence the use of a SAMSHA certified laboratory.
CAP certified laboratory was a negotiation of a laboratory that is
of lesser certification and might be more cost effective, but
cannot be used by those in the Department of Transportation
testing. If you are a DOT employer and carry hazardous cargo or
drive a truck, you cannot use an on-site test kit if your program
is mandated by the federal government. There are probably 1,000
State workers in this program as well.
The medical review officer's (MRO) job is only to review positive
test results, have a conference or telephone call with the donor to
determine if there is a legal medical use for that positive test so
no employment action can be taken based on legal drug use. This is
the only use for an MRO. They have over 170 collection sites
throughout the State of Alaska. Getting a test done in rural
Alaska is not as big a deal as people are making it out to be, MR.
FAGNANI said.
CHAIRMAN LEMAN asked if the test kits could also produce false
negatives. MR. FAGNANI replied yes. He said they use very few on-
site tests - about 100 last year. They have donors sign a
statement that they are only doing a preliminary screening test and
that it has 96% accuracy rate and that sample will be sent off to
a lab to be reanalyzed and the laboratory result is the final
result.
MR. DWIGHT PERKINS, Department of Labor, said they did not want to
take a position on this bill.
Number 494
MR. DAVID ROGERS, Council of Alaska Producers, said they would also
like to see field testing in the bill subject to laboratory
confirmation of positive results. He said he would have to discuss
the issue of false negatives with his clients.
MS. PAM LABOLLE, President, Alaska State Chamber of Commerce,
supported HB 207 as written.
MR. LOGAN responded said he wanted to make sure the committee knew
the sponsor's position on the on-site issues. First, he said, this
bill doesn't hurt anyone. They might not help some people, but
they don't hurt anybody. If they don't do the on-site language
really right, they fear people will be hurt.
The company submits information to the FDA for the kits. On the
front page in bold letters the manufacturer states the product
provides only a preliminary analytical test result. It is only a
screen. "A more specific alternate chemical method must be used in
order to obtain a confirmed analytical result."
MR. LOGAN used the analogy of a bill that doesn't go to the floor
in draft form to illustrate that companies should not be allowed to
use a screening device, a product not intended to be a final
result, to make employment decisions and decisions about people's
lives. He said the sponsor would insist that all on-site tests are
confirmed in a laboratory.
SENATOR MACKIE said he would like to know if the sponsor had any
language that would be acceptable to him regarding the on-site
testing issue before the committee does anything with the bill.
Number 412
CHAIRMAN LEMAN asked what was the time delay in getting results
back to make an employment decision if it goes to the laboratory.
MR. LOGAN said he thought it would take three or four days.
CHAIRMAN LEMAN said that companies like Ms. Linford's wanted to
hire people for something in the field and they need some results
immediately. He asked the cost of the on-site tests. MR. FAGNANI
replied that it would cost $25 - $70 depending on what's being
screened.
CHAIRMAN LEMAN said they would work with the committee aide to meet
some of their concerns and still do no harm.
SENATOR HOFFMAN asked if he meant if there's a positive result in
the field, that the employer can't put that person on suspension
before the final results come in. MR. LOGAN said he would have to
consult with the sponsor on that.
CHAIRMAN LEMAN said he would hold the bill for further work.
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