HB 522 - EMPLOYER DRUG TESTING PROGRAM CO-CHAIR BUNDE announced this was the second hearing on HB 522 and the committee had before them a committee substitute. CO-CHAIR CYNTHIA TOOHEY made a motion to adopt CSHB 522, Version 9 LS1688\C, Cramer, dated 4/17/96 as the working draft. Hearing no objection, it was so ordered. CO-CHAIR BUNDE advised that the committee would begin taking testimony from Anchorage via teleconference. Number 101 LYNN STIMLER, Executive Director, American Civil Liberties Union of Alaska, testified that she had spent quite a bit of time since the last hearing on HB 522 consulting with the national ACLU. The individual that works on the employment law project had some suggestions which she would convey to the committee. First, on page 5, line 26, she suggested ending the sentence after "United States Department of Health and Human Services". That way all the employers would be held to the NIDA standard which is the National Institute for Drug Abuse. She thought one of the protections given to employees then is to be sure that when they are losing their cause of action, the employer would need to use the most highly developed testing system and the federal system is well regarded even by those who primarily represent employees. She thought there was a need for more information than what she had been able to gather in the last two days about the differences between the U.S. Department of Health and Human Services test and the College of American Pathologists and what kind of state tests there would be, how a laboratory would be certified and those types of questions. MS. STIMLER said to go along with the above, she was suggesting that page 5, line 30, be changed to read to something on the order of, "The second or confirmatory drug test shall be conducted in accordance with the procedures approved by the United States Department of Health and Human Services." In other words, that would tie the two together. With regard to the issue of the United States Department of Health and Human Services testing as compared to the American Academy of Pathology, she said there may be a state-employed physician at the Department of Health and Human Services who could help with that analysis. REPRESENTATIVE TOM BRICE joined the meeting at 3:17 p.m. MS. STIMLER referred to page 2, lines 20-31, and said the strongest objection the ACLU has right now is the issue of doing away with actions for defamation, libel, slander, and damage to reputation as established by law. The ACLU particularly objects to lines 28 and 29, but she thought the libel and defamation law is very strong right now and strongly protects the employer already from these actions. She thought some advice should be sought from the Department of Law on the scenario where "if you have an employee who ends up being one of the unlikely false positive people -- let's make it simpler -- he has a drug test that was legitimate and he tested positive for marijuana and the employer, in a vindictive or retaliatory manner, broadcasted that he drug tested positive for heroin or cocaine." She thought that under Section 23.10.610 as written, the employee would have no action against the intentional defamation. She wasn't sure that was the intention of the committee, but suggested the entire subsection be reviewed by the Department of Law to see if the current law is sufficient and whether there would be exceptions that the committee really wouldn't want. CO-CHAIR TOOHEY asked if that wasn't answered on page 2, line 5, "unless the employer's action was based on a false positive test result and the employer knew or clearly should have known that the result was in error..." MS. STIMLER said it is complicated because some of the lawyers that analyzed this issue think that an intentional disclosure under certain circumstances would still bar the employee from suing due to the way this bill is written. She commented that the attorney at the national ACLU was still reviewing the issue, but he was very concerned that that standard would not bar the scenario she had just presented, which was the legitimate positive marijuana test but the employer broadcasted that the person was using heroin or cocaine. MS. STIMLER thought the committee might want to go to the Department of Law regarding the complicated area of the ADA. She said the ADA federally applies to employers with more than 15 employees. There is a section of the ADA that protects individuals who are "erroneously regarded as engaging in such use, but are not actually engaging in the use." What this means is that under the ADA, if an employee tests positive for an illegal use of drugs, but in fact isn't using drugs and can prove it, and is either denied a job or discharged on the basis of the false positive, the individual is considered a victim of illegal discrimination under the ADA's definition of disability. This is sometimes called the "perception exception" because although the test is false, an individual isn't really impaired but the individual is protected by the ADA because the employer perceived the individual is impaired and acts like that. The ACLU sees some problems with the ADA that should probably be looked at by the Department of Law. First, she said, "Let's just assume for the sake of discussion that I've interpreted the ADA right. That means if you have a small employer in Alaska, their employees aren't going to have any rate of recourse for a false positive under the statute we're putting in, but someone in a larger company that's subject to the federal law, would. That probably sets up an equal protection question. Now, the other thing is there's Alaska law that mimics the ADA in many ways and it provides for Alaskan companies with two or more employees under certain circumstances that fall under certain provisions of the ADA, and I don't know all the answers because we haven't had much time." She felt those were the germane issues under the ADA. Number 641 CO-CHAIR TOOHEY referred to the "perception exception" and asked if Ms. Stimler was saying that it was after a person had a drug test and their employer perceives that the person is on drugs because of a disability? MS. STIMLER responded yes, that's right but explained that the word "perception" is used in a slang way to describe this section of the ADA in the Law Review. It means that normally the ADA absolutely permits drug testing. CO-CHAIR BUNDE clarified that the perception is for the employer not the employee. MS. STIMLER said it's called a perception because the employer makes an act based on a false perception. CO-CHAIR TOOHEY said she understood there was an individual that ate some crackers after coming up with a false positive test. MS. STIMLER said she had asked a physician in Anchorage to do a complete med line search because she believed there had been testimony from Mr. Fagnani that normal foods and drugs didn't turn out false positive tests on a gas chromatography test. She believed that Co-Chair Toohey had a copy of a medical article that talks about an individual who ate a half-box of Sociable snack crackers and even on the second gas chromatography set at the most fine tuning, turned up positive. CO-CHAIR TOOHEY said that Mr. Fagnani had addressed that and the information that is to be distributed by the employer will include a list of foods and/or over-the-counter medications that will show a positive test. MS. STIMLER said the only problem with that is from a medical perspective, everyone knows what a drug test tests; a drug test looks for the breakdown products of drugs. For example, if a person is taking cocaine, the test doesn't say for sure it's cocaine, it looks at the metabolite breakdown. The reason for some false positives is because the breakdown product of the food or the legal drug is the same as the illegal drug. Therefore, she thought it would be very difficult to come up with a complete list of everything that could turn up a false positive. CO-CHAIR TOOHEY commented she would ask Mr. Fagnani who was standing by on teleconference, to address that. She didn't believe there were that many foods which would come up with a composite in a person's urine that would be indicative of cocaine use. MS. STIMLER pointed out that she wasn't a doctor nor was Mr. Fagnani, so she didn't think they were the appropriate people to be giving advice on that issue. Number 849 REPRESENTATIVE NORM ROKEBERG said he was curious about Ms. Stimler's remarks regarding the federal ADA and the "perception exception." He asked if the entire potential cause of action was only for a previously defined disabled person or does, in fact, this erroneous false positive test have the effect of creating a person who would now be disabled? MS. STIMLER noted it was a very complicated issue which was the basis for her suggestion to get some advice from the Department of Law. As she understood the Law Review article, it creates a new class. The disability is because the individual is a victim of illegal discrimination under ADA's definition of disability. In other words, the fact that the employer perceived them to be disabled. Having work is considered one of the categories the ADA used, so because the individual lost work due to the false positive, then the person falls into the ADA. It's not someone who needs to have any history of drugs previously. REPRESENTATIVE ROKEBERG commented that's a clear example of why the federal law needs to be amended. MS. STIMLER said there is an Alaska Supreme Court case, Braun v. Alaska Commercial Fishing and Agriculture Bank, which is on point that states an employer who fires an employee for testing positive on a drug test is protected as long as the firing isn't arbitrary, capricious, illegal or based on facts that weren't supported by substantial evidence. The point she wanted to raise for the committee is whether we really want to strip away the right of employees to make a claim against an employer who arbitrarily, capriciously or illegally fires an employee. Even without this legislation, the employer is already protected. MS. STIMLER expressed concern with Mr. Fagnani in that as she views the situation, Allvest stands to gain quite a substantial amount of business with the passage of this legislation where there will be a lot more employers able to do drug testing. She was concerned about the appearance that he is giving the committee advice and answering questions. She wondered if there were other individuals from the Division of Public Health or an individual from the federal government specializing in drug testing for example, that could be consulted on this complicated issue. She wasn't speaking out of disrespect for Mr. Fagnani, but simply because the issue is very complicated. Number 1038 CO-CHAIR BUNDE asked if there were any questions for Ms. Stimler. Hearing none, he asked Mr. Fagnani to present his testimony. Number 1054 MATTHEW FAGNANI, President, Allvest Laboratories, said he would like to address some of the issues raised by Ms. Stimler. First, regarding the conflict of interest, he said he would agree with the ACLU if he was the author of the legislation; he is only the carrier of this legislation. He offered for the committee's information that this legislation is currently on the books in Utah, Arizona and Florida; it is verbatim form that was presented to the committee. MR. FAGNANI said he had received a copy of the draft committee substitute and solicited the advice of his attorney on Section 23.10.600, Employer Protection from Litigation, versus the ACLU's objection on Section 23.10.610, Limits on Causes of Action for Disclosures. He noted that it took some time to digest the meanings of it, but he perceptually disagrees with the ACLU's interpretation of that regulation. Based on the ACLU, Section 23.10.600 sets up the acts of good faith by an employer and actually lays down why an employee cannot sue, including a false positive test. Mr. Fagnani said if Section 2 were to be eliminated, the employee's rights to sue are taken away because the employer could have in Section 1 a false positive and still be acting in good faith. Therefore, the employee would not have any recourse; that's why it is important to leave in Section 2 because it deals directly with false positives. In breaking this down to reality based legislation, Mr. Fagnani said in his six years of performing drug and alcohol testing services in Alaska, Allvest has not had a false positive report issued. He noted they have done retests of original samples in alternate laboratories of the employee's choice and the results have always come out as reported originally. He commented that medical testing today has reached such high tech standard. MR. FAGNANI applauded the ACLU in one regard; they did recognize that mandatory certification was an important issue. He said he would speak to that issue later, but first he wanted to talk about why the false positives don't occur as frequently as what the committee was being led to believe. As he testified at the last meeting, each of the tests that are going to be conducted by employers will have an initial cutoff level for the first test, the screening test. For instance, marijuana in this case is set at 50 nanograms and cocaine at 300 nanograms. The second test, the gas chromatography mass spectrometry, the cutoff level for a test to be considered positive is 15 nanograms. So Allvest goes all the way down to 15 nanograms to verify the sample is positive or there is a fingerprint of the drug there. He explained the gas chromatography test actually looks for the physical molecular structure of the chemical of the drug itself. MR. FAGNANI said with regard to the laboratory certification, he again applauded the ACLU for requiring NIDA standards, but he thought employer's options for choice were being limited by taking out the CAP certification. He had requested a report from a toxicologist, Dr. Fran Urry, PhD. in anticipation of questions the committee might have on analytical procedures. He read a section of the report dealing with laboratory credentials and review for the committee. Dr. Urry speaks to the substantial contribution to the maintenance and quality service is the participation in a national (indisc.) employment drug testing credentialing program. Dr. Urry says, "The federal government, through the Substance Abuse and Mental Health Services Administration (SAMHSA), of the Department of Health & Human Services, operates a national laboratory certification program through whom laboratories become certified to perform federally regulated drug testing." Mr. Fagnani commented that is the NIDA's testing that Ms. Stimler referred to. Dr. Urry's report continues, "The College of America Pathologists operates a similar program for laboratories who want accreditation from them for private sector testing. Both programs require satisfactory submission of an application and a completion of three cycles of performance testing in which substances of unknown contents are sent to the laboratory and the laboratory must successfully test and report them. The laboratory is subject to an on-site inspection by a field of inspectors and must pass to perfection and any deficiencies must be remedied prior to certification and accreditation." Mr. Fagnani said the report goes on to discuss the on-site inspection. One of the requirements the Department of Transportation (DOT) has as a fail safe measure to make sure that false positives do not occur is that if the laboratory certified by SAMHSA were to report a test result that did not re-test appropriately or properly and was reported back to the employer, the re-test is taken from the original sample and sent to an alternate laboratory of choice. That is standard procedure now in the industry. If that test result came back negative, then that laboratory by NIDA standards would be shut down and would have to undergo inspection and any tests that were done after the original test would be in question and would have to be reanalyzed or re-collected. He commented that was presently on the federal books. That is probably part of the reason why there isn't a high degree of false positives coming out of these laboratories. He thought this whole argument on false positives becomes moot because in Alaska, there has never been a case where that has occurred with the use of these DOT certified labs. He said he would argue that lines 20-31 on page 2, Section 23.10.610 needs to be left in because that is the employee's right to question the results of the test. He hastened to add that he is not an attorney, but he was repeating what his attorney had advised him. He urged the committee to pass the bill on to the next committee. He reiterated that this legislation is on the books in Arizona, Utah and Florida and it is good legislation. With regard to what this does for employers, it gives the employers the opportunity to establish this as part of their safety programs without the fear of being litigated against. He pointed out that in our society today, anybody can litigate based on any whim. Number 1494 CO-CHAIR TOOHEY asked if it was correct that Allvest had never had a false positive test. MR. FAGNANI said that was correct. CO-CHAIR TOOHEY asked Dwight Perkins from the Department of Labor if there was a problem in Alaska. Number 1510 DWIGHT PERKINS, Special Assistant, Office of the Commissioner, Department of Labor, said he couldn't answer that directly because he didn't know if it has been or has not been a problem. Speaking for the Department of Labor, he couldn't give Co-Chair Toohey an answer because he didn't know. CO-CHAIR TOOHEY asked if the department had a list of companies in Alaska that do drug testing? MR. PERKINS said he could get that information for the committee. CO-CHAIR TOOHEY asked him to inquire of the companies how many false positive results they had had and how many people had been fired because of being falsely accused of marijuana or alcohol use. REPRESENTATIVE ROKEBERG thought Mr. Fagnani had testified there were no laboratories in Alaska; everything was sent outside. CO-CHAIR BUNDE asked Mr. Fagnani if that was correct. MR. FAGNANI said that was correct; there are no longer any laboratories, other than hospitals and they don't really do workplace testing, but rather mostly medical tests or treatment. There are no laboratories in Alaska doing drug and alcohol testing; all the samples are sent outside to certified laboratories for testing. In response to Co-Chair Toohey's question to Mr. Perkins, he could say with some certainty that there has not been a false positive issued from any one of his competitors because if there had been, it would have drawn national spotlight to the laboratory in question and the knowledge would not have been shielded from Allvest or anyone else in the industry. To his knowledge, there had not been a false positive test result issued by any vendor providing similar types of services as Allvest. MR. PERKINS shared a personal experience with committee members of when he was working in the private sector and was required to take a urine test. The manufacturer had a bad batch and a positive result came back from Seattle and the employer had another test done. However, because everyone was coming up positive, they started doing some checking and found that one part of the test got mixed up with another part of a different test so they weren't of the same box. It had nothing to do with the tester or the employee, but human error. He pointed out that happened in Juneau and it was not in the national spotlight. Number 1680 CO-CHAIR TOOHEY asked Mr. Fagnani to comment on Mr. Perkins' situation. MR. FAGNANI inquired as to what year that incident incurred. MR. PERKINS said it was three years ago in Juneau. MR. FAGNANI responded he would venture to say the laboratory that did the original testing was not a CAP certified lab and was not a NIDA or SAMHSA certified lab. There are laboratories that are not certified and he once again pointed out the importance of having the laboratories certified. It's for that reason alone, that a certified scientist or laboratory manager would have recognized that it was a bad batch of reagents. MR. PERKINS noted that Bartlett Memorial Hospital in Juneau had done the testing for the employer, and he assumed the hospital did use a certified testing facility in Seattle. MR. FAGNANI said they may or may not. He added it was important to keep in mind that whenever a laboratory analysis is done there is a positive and a negative sample on the instrument along with the regular sample. As long as the positive and negative samples react the way the manufacturer's reagent intend it to, then there would be a proper test. He commented there are 100 war stories that people can attest to testing positive for marijuana by taking ibuprofen, but unless a person dates some of these incidents and knows what the laboratories were years ago, people could test positive for marijuana by taking ibuprofen but it could not be confirmed by using gas chromatography. He said now we're into the ninth or tenth generation of testing for reagents and that is no longer an issue. MR. PERKINS said the reason he shared his personal experience was not to argue with Mr. Fagnani or speak negatively on Allvest's testing, but to point out that human error does happen and it did not draw national attention. Number 1798 CO-CHAIR BUNDE thought Mr. Fagnani had said it would bring national attention to the laboratory. REPRESENTATIVE BRICE asked if under this legislation an employee could sue a laboratory. MR. FAGNANI said he didn't know the answer, but he imagined they could sue anybody they wanted. REPRESENTATIVE BRICE commented the employers are being held harmless, but he questioned if the labs were being held harmless. MR. FAGNANI replied not under this language. Mr. Fagnani said as a provider of these services, Allvest provides a $1 million binder per incidence from the lab and the physician that reviews their results. That is on file in their office because they are held to the highest standards, so they know the lab is adequately (indisc.) to defend their results. He added that as a provider of these services, under federal law he has to submit 3 blind samples for every 100 tests Allvest does and 25 percent of them have to be spiked with an known quantity of drugs. They are sent to the SAMHSA certified labs and to date they have not had one come back that was not supposed to come back the way it was originally sent in. DIRK NELSON, Licensed clinical social worker and licensed marital and family therapist, said over the last two years he'd had a significant amount of development in policies and procedures manual issues as an ex-city employee regarding proposed drug testing policies. He commented there were a number of previously existing cases at the state Supreme Court level, and he was concerned if this legislation would be consistent with the state Supreme Court's finding regarding safety sensitive positions which is also the national Supreme Court's finding that this has not necessarily been opened up carte blanche. Rather it seems to have been stated that people testing must rely upon a safety sensitive issue without there being probable cause in that the court has also concluded that urine analysis is search and seizure. He wondered if there were violations of the Fourth Amendment issues by an employer. In other words, testing is done on persons who are not legally eligible to be tested or otherwise unjust search is conducted. He asked if those employees would be barred from seeking civil damages for violation of their federal Fourth Amendment issues? He thought this was a question that should be presented to the Department of Law. Number 1958 MR. NELSON said he, too, had some concern about Mr. Fagnani's interest in that he believed Representative Kott wrote this legislation for someone whom his office would not state who the constituent was requesting it. He didn't believe Allvest was as detached from this legislation as they might otherwise present. MR. NELSON commented that the Alaska State Constitution's privacy section is one of the strongest, if not the strongest in the Nation. There was a decision in 1975 that has never been overturned and currently cases are being dismissed from court regarding possession of small amounts of marijuana in the home. That came up in Lukey v. Nabors and the only reason that wasn't an issue was because of the safety sensitive nature of their position. Mr. Nelson said that gets into the area of disparity in treatment between alcohol testing and drug testing in that the Federal Drug Free Workplace Act focused on impairment on the job. It was very specific in that regard. The breathalyzer process is used with alcohol testing which clearly ascertains current impairment. At the employee's request, a more reliable test may be sought such as a blood test; however, that cannot be put upon a person because of the medical procedure violation regarding Fourth Amendment issues. He commented that with urine analyses, however, we're no longer talking about current impairment, but metabolites that might simply reflect what an employee did five days ago. Clearly, it has nothing to do with impairment on the job and yet this person's livelihood may be severed for engaging in an activity on a Saturday night at home that the state Constitution says is acceptable. In many cases, it's being inferred that the person is impaired because of the metabolites. He encouraged the committee to read some writings of Dr. John Morgan, Professor of Pharmacology at New York City of Medicine dealing with the significance of metabolites. He also mentioned the federal Department of Transportation's study entitled "Marijuana and Actual Driving Performance" which indicates that marijuana-influenced drivers came out responsible for fewer lethal accidents than drug free drivers. Number 2145 CO-CHAIR TOOHEY asked Mr. Fagnani if he could identify the metabolites in urine after five days? MR. FAGNANI said no he couldn't. He went on to explain that drug testing shows evidence of use; it doesn't show levels of impairment. The tests are based on anything greater than the screen. He could not attest to how much marijuana makes a person act silly or not. Number 2170 MR. NELSON said with regard to the accuracy of testing, it's accepted that if a person was clean of all substances for two months, the person could smoke a joint on the way to a drug testing and test negative. Likewise, depending on the degree of use, a person could test positive five days after the fact and any where up to 30 days after the fact depending on upon the amount of fatty tissue in a person's body. Obese people will tend to test positive, particularly for marijuana, much longer than people who are not overweight because PHC metabolites adhere to fatty tissues in the body. Number 2203 CO-CHAIR BUNDE closed the meeting to public testimony. He noted that questions had been raised regarding legal issues which were beyond the parameters of this committee. Therefore, if committee members decided to move the bill out of committee, he would like to confer with the Speaker of the House and the Chairman of the Judiciary Committee to determine if they would entertain referral of this bill to the Judiciary Committee. Number 2244 REPRESENTATIVE ROKEBERG said he would move CSHB 522(HES) with individual recommendations and zero fiscal note from the HESS Committee with the understanding that the Labor & Commerce Committee would request and receive testimony from the Department of Law regarding the issues that were raised. CO-CHAIR BUNDE objected for discussion purposes. CO-CHAIR TOOHEY thought this bill had great merits, but needed additional work. CO-CHAIR BUNDE said a motion had been made to move CSHB 522(HES) with individual recommendations. Hearing no objection, it was so ordered.