Legislature(1995 - 1996)
04/16/1996 03:07 PM House HES
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* first hearing in first committee of referral
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HB 522 - EMPLOYER DRUG TESTING PROGRAM Number 130 GEORGE DOZIER, Legislative Assistant to Representative Pete Kott, said HB 522 was sponsored by the House Labor & Commerce Committee and is based on the premise that employers, employees and the general public have a strong interest in workplace safety and productivity. This bill was filed with the intention of promoting productivity and safety by authorizing employers to institute mandatory drug and alcohol testing programs. It is recognized that although employees have certain privacy rights that may be impacted by mandatory alcohol and drug testing, these rights are outweighed by the interest of employers in promoting workplace safety and productivity. This is especially the case where the programs themselves are well advertised, people are aware of them and the testing is done reasonably contemporaneously with the employee's schedule of work hours. MR. DOZIER said HB 522 grants immunity to employers that institute a drug and alcohol testing program. Generally, where the employer acts in good faith based upon the results of a test, the employer would not be subject to civil liability for actions taken against employees. House Bill 522 sets requirements for the programs, principally it is required that the program be articulated in a written policy and published to the employees and prospective employees. It establishes certain standards of confidentiality of results; generally, the results may not be communicated to anyone except the employer or a designated agent of the employer, which would be a person that has been designated as responsible for gathering the results, to the employee and as a result of a court order or subpoena. The written policy must be advertised and published to the employees so they have fair notice. MR. DOZIER stated that HB 522 also establishes certain minimal standards for testing procedures. Already, the federal government and the state of Alaska require approximately 53,000 workers to undergo mandatory drug and alcohol testing. He added that other states are starting to move in this line and as a point of fact, HB 522 was modeled directly on a statute this is now law in Arizona, he believed. Representative Kott, given these trends in the law, believes it is time to get the issue on the table and for dialogue to occur in Alaska. It is recognized that HB 522 is just a first step, a beginning step and as a result of what is presented in testimony, certain adjustments may become desirable. He offered to answer any questions the committee may have. Number 418 MATTHEW FAGNANI, President, Allvest Laboratories, said Allvest Laboratories is a provider of drug and alcohol testing services to more than 1300 Alaskan companies. He said this type of legislation is extremely important to many of those companies. Currently, as Mr. Dozier stated, this legislation is in effect in the state of Utah, which is where it originated from, it is in the state of Florida and most recently, in the state of Arizona where Allvest Laboratories was able to obtain a copy of their legislation and pass it on to Representative Kott. MR. FAGNANI said allowing an employer to be protected from litigation would create an environment that tells Alaskan businesses that Alaska is a state which recognizes that illegal drugs and alcohol are not welcome in the workplace. Drug testing is a workplace safety issue and assists management in improving productivity and job efficiency. In Alaska today, there are more than 53,000 Alaskans that are now part of mandatory federally required drug testing programs. These are industries of aviation, truckers, pipeline-regulated employees and over 1,000 commercial driver license (CDL) holders in the state of Alaska. This represents approximately 20 percent of the state's employed population or 8 percent of the state population. If a person takes into consideration that there are also companies who choose to test, but are not federally mandated to test, the statistics would probably double. For example, many of the major hospitals and ski resorts are testing already. He asked why is this type of legislation necessary? It requires employers to have a written policy. Keeping in mind, that those companies not regulated to test by a federal agency, do not need any type of written policy or procedures that they follow. The federal regulation clearly outlines that companies regulated by the federal Department of Transportation have a written policy. It would require employers to inform employees about their policy, such as what types of tests are required, methods of sample collections, consequences of refusal to test and what happens if an employee tests positive. These are all things not currently made known to employees if the company is not mandated to test by federal regulation because Alaska does not any have any type of statute that requires an employer to communicate that information. This would also allow for standardized collection procedures, which are very important in the collection of these samples, using testing procedures that require an approved or certified lab which utilizes standard cutoff procedures; use of alternative or a different chemical process to confirm those samples that test positive, specifically gas chromatography and mass spectrometry which is the goal standard for the industry; and explain to employees what happens if they test positive. These are all things that should be included in a policy that are not currently there. He noted this legislation is extended to those mandated by federal legislation, and employers that choose to test voluntarily under the non-regulated testing industry. In other words, this would be expanded to those industries that are presently mandated to test. Number 639 MR. FAGNANI said this legislation is also an employee protection bill. He explained that today an employer can use almost any type of method they choose, regardless of scientific principles, the employer can use any type of collection procedures they deem fit, and the employer may not have a policy that informs employees what is required of them. This legislation offers a win/win situation to both employees and employers. By setting state standards for effective workplace drug and alcohol testing, the workplace will be a safer, more productive and more efficient workplace. He urged the committee to pass HB 522. He further added that HB 522 is supported by the support industry group, Alliance, which represents over 340 Alaskan businesses, primarily in the oil field, the state of Alaska Trucking Association, and most recently, the Anchorage Chamber of Commerce, which just passed a resolution. In addition, he was aware that Representative Kott's office had received over 130 responses from people serviced by Allvest who felt this was an important piece of legislation. Number 770 CO-CHAIR TOOHEY observed that hair had been used to test for a long history of drug abuse and asked Mr. Fagnani how long abuse could be detected through hair. MR. FAGNANI said it depended on the length of the hair in that it goes through the whole duration that an individual has been growing that hair. It was his understanding that hair testing goes in centimeters and each centimeter represents a period of time in a person's life that is recorded. He noted that hair testing is not very prevalent in Alaska; it is primarily used in the banking industry, gold mining industry and casino industry. He added that hair testing is not one of the recommended treatments for workplace drug testing. It does, however, show a much longer window of time. CO-CHAIR TOOHEY said she is very much concerned that we are a very forgiving society and treatment programs are included in contracts for health care, which she believes are valid. She remarked our whole society is permeated with this, and we must allow this treatment to continue. Number 866 CO-CHAIR BUNDE observed that an individual going through drug treatment could get a hair cut and the evidence would go away. MR. FAGNANI said he knew that hair testing was not being done in Alaska at any prevalent rate. As far as rehabilitation is concerned, it is important to keep in mind that this bill is not to keep people from treatment; as a matter of fact, it speaks to treatment. The Americans with Disabilities Act (ADA) comes into effect once a person is rehabilitated. He explained that once a person is rehabilitated for a prior drug problem, that person is now protected under the Americans with Disabilities Act as a disabled American. That has another whole set of provisions which allows an employer to test based on that federal law. That is another personnel policy that human resource persons have available to them. He pointed out that an employee cannot be denied employment because he/she tested positive in the past and has corrected that problem by seeking treatment. The Americans with Disabilities Act protects that American and allows them not to be discriminated against. Number 955 CO-CHAIR TOOHEY recollected there were a number of drugs on the market used to control seizures, depression, and other conditions and asked Mr. Fagnani how those drugs are handled in the drug testing process. MR. FAGNANI stated the drug program is designed to work around an employer's perceived need of what they feel is needed to be tested. Currently, the prevalent drugs in the workplace are limited to five: Marijuana, cocaine, amphetamines, opiates and PCP. None of those have anything to do with seizures and any type of medication that is issued by a physician is considered legal drug use and is allowed in the workplace. CO-CHAIR TOOHEY asked if poppyseeds in a muffin would show up in a drug test. MR. FAGNANI responded that it could show up. Currently, there are discussions in the federal Department of Transportation to raise the screening level to over 3,000 nanograms to eliminate those positive poppyseeds for opiates. Presently, a case would be reviewed by a physician where poppyseeds resulted in a positive test. He reiterated the importance of employer policies because if a person is working for a company not regulated, there may not be a medical review officer or a physician to review the test result and help the employee determine what caused the positive test result. CO-CHAIR TOOHEY asked if there was a great problem in Alaska? MR. FAGNANI said they see about a 6 percent pre-employment positive rate. These are people who know they have to pass a drug test to get a job. He noted they are only tracking the federally regulated industries currently. He feels that is a pretty high rate. He said once the programs are going and people are into the programs, they see less than 1 percent in the random programs and even less in the post-accident and reasonable cause. With regard to Co-Chair Toohey's question, the Anchorage Daily News just pointed out in the Sunday edition that crack cocaine was the drug of choice on the street, so he felt there was a problem in Alaska, but Alaska was pretty fortunate compared to other states. CO-CHAIR BUNDE remarked it's also the drug for young people who aren't in jobs involved in this program. MR. FAGNANI said that's true, and added that one of the latest reports released by the Partnership for Drug Free America, shows that according to a 1995 survey, marijuana use is on the rise in youth and youth have changed their perception from "marijuana is bad" to now "marijuana is okay." Number 1100 CO-CHAIR TOOHEY advised that mothers of 16 percent of newborn babies tested positive for drugs at the two hospitals in Anchorage. REPRESENTATIVE ROKEBERG asked Mr. Fagnani to explain the references in the employer's policy regarding confidentiality on page 3, lines 29-31. He said, "There's a stipulation here in this prospective statute that there be a statement regarding the confidentiality, but that's merely a statement of what they're going to do with the results of the test. There's no guarantee of confidentiality or is there any direction here about what to do with -- if you find a positive test." MR. FAGNANI said the committee needed to keep in mind that this document could easily be 40 pages long with "to do's", so he thought it needed to be reviewed as a shell and each employer would be given the opportunity to put in what they feel is necessary. His interpretation of "the right of an employee, on the employee's request, to explain in a confidential setting, a positive result;" is for example, an employer wouldn't announce on a factory floor or announce it over the public announcement system that a particular employee had a positive drug test, but would call the employee into a private setting and discuss the new found information. With regard to the statement of the employer's policy regarding confidentiality, he felt the policy needed to say that if a positive test were to occur, an employee would be brought into a private setting to discuss the test results and the options available according to company policy. Number 1199 REPRESENTATIVE ROKEBERG as a follow-up, asked about the disposition of the information after the meeting takes place. MR. FAGNANI said the Recordkeeping Act then comes into play, which requires that drug test results be kept just like medical records. He explained currently, medical records are kept in a separate file away from regular human resource records because more people have access to those records. Medical records on the other hand, are already kept in a separate file in accordance with a federal law, so the drug test results would be part of that file record keeping. REPRESENTATIVE ROKEBERG commented that normally a firm is hired to conduct the tests for a business, so there wouldn't be any doctor/patient relationship that's privileged information under the law. He asked if there was any safeguard other than the federal statute regarding the release or dissemination of this information. MR. FAGNANI clarified that Allvest closed their laboratory several years ago due to liability costs and they now refer everything to a certified laboratory outside Alaska; there are no labs in Alaska doing this work. He went on to explain that the certified laboratory would send the test result either via a secure modem or fax line established between the company and the laboratory, or it would come directly to Allvest and they would advise the company of a forthcoming facsimile message. This is common practice being used today in order to assure confidentiality or that the message was sent and received by the people who need to have knowledge of that information. Number 1300 REPRESENTATIVE ROKEBERG said his question actually related to the disposition of the information after it was received by the company and asked if it was kept in a repository of medical reports in a company file. MR. FAGNANI replied that currently the result is kept as long as the employee's personnel records are kept. He added that if Allvest was setting up a program for a company, they would advise the company to follow the federal guidelines already tested by the Supreme Court which means the positive results would be retained for five years, the record would be kept independent from the personnel record and stay in a locked file in a secure area. Number 1345 REPRESENTATIVE GARY DAVIS inquired why there was a need for this legislation when he knew of companies that were already doing this. MR. FAGNANI said this bill is not intended to address the right to test, but rather eliminate the risk of a lawsuit based on a disgruntled employee who is part of the 6 percent minority mentioned previously that didn't pass the drug test, and hires an attorney to dispute the drug test because he/she didn't get the job. He told the story of a company that spent upward of five digits on attorney fees in a case that never even went to court - the paper was never even filed to go to court - but the attorney felt that because the company was large enough, they would settle out of court. That's why this legislation is needed. Number 1410 REPRESENTATIVE DAVIS noted the bill includes the allowance to test blood and asked how that would stand up constitutionally. MR. FAGNANI said if he was rewriting the legislation, he would remove that language and leave urine as the true method for testing. Urine testing is the recognized method and the standard in the industry; blood is used for an alcohol draw. He noted that hair testing could be left in because it is FDA approved and is a standardized procedure. Number 1443 REPRESENTATIVE ROBINSON referred to page 3, lines 2-4, and asked how this fits into the federal drug-free workplace program? Also, she was curious why a person whose career was impacted because of a positive test result due to poppyseeds for example, but was truly not impaired on drugs and alcohol, shouldn't have some recourse under this section. MR. FAGNANI said there are two types of federal workplace policies. The Drug Free Workplace Act of 1988, which addresses companies with $25,000 or more in federal contracts, must have a drug free workplace statement attesting to a drug free workplace and of course, you really can't attest to it unless you are testing. He further stated with regard to the federal Department of Transportation standards, this type of legislation is not impacted at all because it doesn't affect their policy. If anything, the federal workplace policy goes more in detail as far as what a company will do and sets standards that X, Y and Z will be followed when collections are done. This legislation does not set it out as that strict of a standard; it just indicates that a standardized collection process will be used, which they would attest would be the federal workplace drug collection procedures. He added if anything, this allows the federal employers that are now federal private employers who are testing to be protected, which they are not currently. He noted the company he had referred to earlier was a federally mandated test and even though the person had tested positive twice, he was able to find an attorney to represent him. Regarding the poppyseed issue and ruining someone's life, he commented that Allvest tested over 30,000 samples last year from Alaskans and in Fairbanks there were seven people on one job site that tested positive for poppyseeds in three consecutive days; they haven't had a poppyseed positive test since that time. He pointed out one of the problems with poppyseeds is that it cannot be determined which poppyseed is going to cause a positive test, but it's the green immature poppyseed, not the cooked poppyseed. He said if there is some concern about that, then adding the language that positive opiates must be reviewed by a physician to rule out poppyseeds would be a way to assure that a person was not wrongfully accused of an opiate use. The medical review officer who is a licensed physician, would contact the laboratory and have a copy of the quantitative reading of the gas chromatograph. The gas chromatograph would indicate nanograms and anything less than 3,000 nanograms would be a poppyseed, anything over 3,000 would be a type of opiate family drug. In the six years that Allvest has been testing, they have not had a case where a poppyseed ruined someone's job. CO-CHAIR BUNDE asked Lynn Stimler to present her testimony from Anchorage. Number 1670 LYNN STIMLER, Executive Director, American Civil Liberties Union of Alaska (ACLU), testified the ACLU recognizes this bill as a first step and wished to offer some suggestions. First, the ACLU really supports Section 23.10.620(e) because it will assure uniform applicability. It will give managers the incentive to make sure the tests are conducted properly. She went on to state some of the ACLU's concerns. This Act would permit the adoption of an employer's policy that prohibits all use of alcohol by all employees even during their off duty hours. So, an employer would be protected from firing someone who had a few beers at a softball game where the employer observed them. That may not be the intent of the legislation, but that could happen in application. The ACLU is also concerned about the Americans with Disabilities Act (ADA) for the same reasons that were previously mentioned. The ACLU is concerned that a disability under the ADA and someone tested for use of alcohol might be entitled to a reasonable accommodation before receiving any discipline. She referred to Section 23.10.600(b) and said the ACLU feels that imposes an impossibly high burden of proof on the employee. She said the language "knew or clearly should have" and "reckless or malicious disregard for the truth" underline 6 to 8, when looked at in point of fact, an employer could intentionally choose to use a testing facility that did shoddy work and was known to have a high false positive rate and a high rate of contaminating samples. Even so, it would be impossible for the employee to prove that the employer knew that any one particular result was in error because even the worst lab will be right sometimes. She added that most employees don't have enough money after being fired to go out and get their own drug test. She pointed out that Section 23.10.610, page 2, line 20, is unnecessary. Employers are already protected when giving job references as long as they have a good faith belief in the truth of what they say. Other than telling a prospective employer that the employee tested positive for drugs or alcohol, there is no reason why the employer should be allowed to give out this information. Another concern the ACLU has is that because actions for defamation are limited under provisions of the bill, the subject of the defamation - the employee - could have a false positive drug test and then if the person tested positive for marijuana, an employer could disclose that the employee tested positive for cocaine and still be protected from liability. In addition, the legislation appears to leave open the possibility that the disclosure of a false positive could be made intentionally and be protected. She didn't believe this was the intent of the legislation, but she thinks it is a hole that the legislation as written, flies through. Also, the ACLU thinks that 23.10.610 and 23.10.660 contradict each other; the bill would provide for safe (indisc.) of search and seizures. CO-CHAIR BUNDE said it appears that some work is needed on the legislation and the committee will undoubtedly hold it over until Thursday at which time a committee substitute would be introduced in an attempt to address some of the concerns that were raised. He asked her to conclude her testimony. MS. STIMLER said she would fax a line-by-line analysis of the bill from the ACLU for the committee's consideration. Number 1904 AVA GOODMAN, Owner, Goodman Builders, testified that she and her husband operate Goodman Builders and their business has pre- employment testing for their seasonal crew, but for fear of litigation they do not have a random drug screening program. She said since instituting pre-employment testing, their accident and workers' compensation claims have been reduced. The (indisc.) requires that any accident involving company equipment be post- accident tested. In these cases, the random program could have prevented some accidents from occurring at all. This bill before the committee could provide the necessary protection for her and her business, as well as provide security for all employees that their understanding of a drug screen policy is beneficial for them as well. She urged the committee to support HB 522 and take the steps necessary to help all Alaskan entrepreneurs continue to operate their businesses in a safe and successful manner. She thanked the committee for allowing her to testify. Number 1940 REPRESENTATIVE VEZEY asked if her company owned or operated any commercial vehicles? MS. GOODMAN said no, they do not employ any commercial driver license holders. They are a company that provides remodel and high quality finishing work. She noted that part of the reason they want to do drug testing is because they want to make sure their employees show up for work. It is a seasonal business and she wasn't implying the construction industry had a high prevalence for drugs, but it was their way of letting employees know they won't tolerate this type of activity. REPRESENTATIVE VEZEY asked if she was aware that as of this year, if a company has one commercial vehicle, the entire company has to comply with the federal drug testing program. MS. GOODMAN was aware of that, but their company doesn't operate any heavy equipment; they are strictly a small finishing business whose reputation demands they have high quality employees. Number 1995 HELEN CRAIG testified via teleconference from Sitka that she had a few concerns about HB 522 that she wanted to express to the committee. She said the bill seems to address the issue of drugs and alcohol in the workplace, which is good. However, it needs to be recognized that if a person has a cold or flu, they will not be able to take any type of medication if they intend to work that day. The same thing is true for people with allergies and those who take medication prescribed by doctors. She said that some employers do not recognize this. She noted there are drivers in her workplace that are required to periodic random testing, but everyone in the company gets tested. She suggested there should be differing degrees of medication depending on the type of job. She also suggested inserting on page 7, lines 14 and 15, a listing and the amounts that are not acceptable. She also expressed concern that under this legislation an employer cannot be sued for defamation of character. CO-CHAIR BUNDE asked Mr. Fagnani if he was aware of any non- prescription, over-the-counter cold medicines that would cause a positive test. MR. FAGNANI said over-the-counter medications do not interfere with the drug test, but this is where cutoff levels are critical. He noted that you fall out of the modern curve when quantitative levels are set in statute. For instance, the federal Department of Transportation just changed the marijuana rate from 100 nanograms to 50 nanograms, which is more sensitive. Allvest found they got one-third more positives by doing that. He said it would be better to state that drug testing levels would meet the federal cutoff levels, which would allow the federal government to change their levels. He commented that the previous speaker may have been referring to the list produced and distributed by Allvest of over- the-counter medications that contain alcohol. Part of the federal requirement for commercial driver license holders and pilots is an abstinence rule before they report to work. The federal government, under the CDL law states that any CDL holder reporting for work to operate a commercial rig cannot consume any alcoholic beverage four hours prior to duty. They did not quantify alcohol; alcohol is alcohol whether it comes in a Nyquil bottle or Scope. He thought that may be the list the previous speaker was referring to. Number 2224 REPRESENTATIVE TOOHEY offered the example of the young woman who won the gold metal in the Olympics without her asthma medication as a way of staying healthy without consuming medications containing alcohol. Number 2244 DWIGHT PERKINS, Special Assistant, Office of the Commissioner, Department of Labor, said the department had some concern with a couple of sections of HB 522 regarding the employment security. He read the following language for the record: "Section 2 of the bill would amend the Employment Security Act at AS 23.20.379(a) to deny unemployment insurance (UI) benefits to any worker who fails to pass or refuses to take a drug or alcohol test which meets the standards in Sec. 1 of the bill. A worker discharged for this reason would be deemed discharged for misconduct connected with the work. This section would affect all private employment, but would not add any significant cost to the claim adjudication process. It would, however, change the current standards for adjudicating discharge cases where an employee fails or refuses to take a drug test. "Under AS 23.20.379(a), the department has disqualified workers who fail or refuse a test if there is some indication that the worker is impaired or using drugs on the job, or if the hazards of the job make it mandatory that the employer control even off-duty usage. But all off-duty use, even if illegal, is not necessarily misconduct connected with work. MR. PERKINS said it was his understanding that alcohol stays in the system for 72 hours. Mr. Perkins continued reading his statement: "Drug-impairment or using drugs on the job is clearly work-connected misconduct. Many discharge cases, however, involve off-duty use, as shown by a positive drug test. In deciding if off-duty use is work-connected, the department determines whether the drug use had a direct adverse impact on the employer's interest or made the worker unfit to perform the job. "If an employer's rule prohibits off-duty use and is reasonably necessary for safety reasons or required by law, then off-duty use is misconduct, because it adversely affects the employer's interest. Simple off-duty use with no impairment on the job and no other adverse affect on the employer's interest is not currently treated as work-connected misconduct. TAPE 96-41, SIDE B Number 001 MR. PERKINS continued reading his statement: "The bill would impose a blanket disqualification on all employees, regardless of the conditions of the work or the employer's interest in regulating off-duty conduct. It would disqualify workers in industries and occupations in which their off-duty conduct did not pose any significant risk to their fellow workers or their employer's interest. In fact, one of the standards for the testing procedure is that all employees are subjected to the same test, regardless of job duties. The bill blurs the distinction between on-duty and off-duty behavior and does not allow the department to determine whether the behavior actually harmed the employer's interest. "Section 3 of the bill adds the same `fail or refuse' language to the UI extended benefits provision in AS 23.20.406(h). This section is redundant. It is unnecessary to include any misconduct disqualification standards in AS 23.20.406(h), because it already disqualifies any extended benefit claimant who was previously disqualified under AS 23.20.379. The language in Sec. 2 of the bill is sufficient to insure the reach of the disqualification to both regular and extended benefit claimants." Number 061 MR. PERKINS said the department's suggestion to help make this a better bill would be to delete Sections 2 and 3. He offered to answer any questions from the committee and announced that Ron Torgerson from the Department of Labor was also available for any technical questions. CO-CHAIR BUNDE said he was assigning this bill to a subcommittee comprised of Co-Chair Toohey, Representative Kott, Mr. Perkins and Mr. Fagnani to craft a committee substitute that could be brought before the full committee on Thursday, April 18. REPRESENTATIVE ROKEBERG asked Mr. Perkins if the department was concerned about a legal standard or other standards, because Representative Rokeberg deduced from his testimony that Commissioner Cashen condones off-duty drug use and did not want to become involved in looking into that or any ripple effect it could have. MR. PERKINS assured Representative Rokeberg that Commissioner Cashen does not condone the use of illegal drugs, but the concern is are we stepping beyond the threshold of allowing an individual who employs another individual to be able to manage the employee's weekends whether it is drinking beer or using illegal drug substances. CO-CHAIR TOOHEY said she also had a concern with this; an illegal behavior is an illegal behavior whether it's heroin use, cocaine use, sexual abuse of a minor or rape - all are illegal and not okay to do on a weekend. CO-CHAIR BUNDE said while he doesn't condone illegal drug use, he didn't think it was appropriate to write into legislation that enforcement of that activity is something an employer should do. He announced the committee would have a committee substitute on Thursday.
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