2003 Legislation
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SENATE BILL NO. 1119 – Alcohol/drug-free workplace

SENATE BILL NO. 1119

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S1119......................................................by STATE AFFAIRS
ALCOHOL AND DRUG-FREE WORKPLACE - Amends existing law to extend the
application of the provisions of the Idaho Employer Alcohol and Drug-Free
Workplace Act to all employers; to limit application in certain
circumstances; and to provide that the state of Idaho or any political
subdivision of the state that conducts drug and alcohol testing of all
employees and prospective employees for whom such testing is not
constitutionally prohibited, shall qualify for and may be granted the
employer premium reduction.
                                                                        
02/13    Senate intro - 1st rdg - to printing
02/14    Rpt prt - to St Aff
02/18    Rpt out - Ref'd to Com/HuRes
02/28    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/06    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
      Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai,
      Marley, McKenzie, McWilliams, Noble(Anderson), Noh, Pearce,
      Richardson, Schroeder, Sorensen, Stegner, Stennett, Sweet, Werk,
      Williams
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Sorensen
    Title apvd - to House
03/07    House intro - 1st rdg - to Jud
03/20    Rpt out - rec d/p - to 2nd rdg
03/21    2nd rdg - to 3rd rdg
03/27    3rd rdg - PASSED - 63-3-4
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Bieter,
      Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Collins, Cuddy,
      Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge,
      Field(18), Field(23), Gagner, Garrett, Harwood, Henbest(Bray),
      Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez,
      McGeachin, McKague, Meyer, Miller, Nielsen, Raybould, Ridinger, Ring,
      Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley,
      Skippen, Smith(30), Smylie, Snodgrass, Stevenson, Tilman, Trail,
      Wills, Wood, Mr. Speaker
      NAYS -- Mitchell, Naccarato, Ringo
      Absent and excused -- Clark, Crow, Moyle, Smith(24)
    Floor Sponsor - Ridinger
    Title apvd - to Senate
03/28    To enrol
03/31    Rpt enrol - Pres signed
04/01    Sp signed
04/02    To Governor
04/07    Governor signed
         Session Law Chapter 233
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1119
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE IDAHO EMPLOYER ALCOHOL AND DRUG-FREE WORKPLACE  ACT;  AMENDING
  3        THE  HEADING  FOR  CHAPTER  17,  TITLE  72,  IDAHO  CODE; AMENDING SECTION
  4        72-1701, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING ONLY  PRIVATE  EMPLOY-
  5        ERS;  AMENDING SECTION 72-1702, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING
  6        ONLY PRIVATE EMPLOYERS AND TO MAKE A TECHNICAL CORRECTION;  AMENDING  SEC-
  7        TIONS  72-1703,  72-1704,  72-1705 AND 72-1706, IDAHO CODE, TO REMOVE LAN-
  8        GUAGE REFERENCING ONLY PRIVATE EMPLOYERS; AMENDING SECTION 72-1707,  IDAHO
  9        CODE, TO REMOVE LANGUAGE REFERENCING ONLY PRIVATE EMPLOYERS AND TO PROVIDE
 10        CORRECT  TERMINOLOGY; AMENDING SECTION 72-1708, IDAHO CODE, TO REMOVE LAN-
 11        GUAGE REFERENCING ONLY PRIVATE EMPLOYERS AND TO  RESTRICT  APPLICATION  OF
 12        THE  SECTION; AMENDING SECTIONS 72-1710 AND 72-1711, IDAHO CODE, TO REMOVE
 13        LANGUAGE REFERENCING ONLY PRIVATE EMPLOYERS AND TO PROVIDE CORRECT  TERMI-
 14        NOLOGY;   AMENDING   SECTION  72-1712,  IDAHO  CODE,  TO  REMOVE  LANGUAGE
 15        REFERENCING ONLY PRIVATE EMPLOYERS AND TO  MAKE  A  TECHNICAL  CORRECTION;
 16        AMENDING  SECTION 72-1714, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING ONLY
 17        PRIVATE EMPLOYERS; AMENDING SECTION 72-1715, IDAHO CODE, TO LIMIT APPLICA-
 18        TION OF THE SECTION; AND AMENDING  SECTION 72-1716, IDAHO CODE, TO PROVIDE
 19        THAT THE STATE OF IDAHO OR ANY POLITICAL SUBDIVISION  OF  THE  STATE  THAT
 20        CONDUCTS DRUG AND ALCOHOL TESTING OF ALL EMPLOYEES AND PROSPECTIVE EMPLOY-
 21        EES FOR WHOM SUCH TESTING IS NOT CONSTITUTIONALLY PROHIBITED SHALL QUALIFY
 22        FOR AND MAY BE GRANTED THE EMPLOYER PREMIUM REDUCTION.
                                                                        
 23    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 24        SECTION 1.  That the Heading for Chapter 17, Title 72, Idaho Code, be, and
 25    the same is hereby amended to read as follows:
                                                                        
 26                                      CHAPTER 17
 27              IDAHO PRIVATE EMPLOYER ALCOHOL AND DRUG-FREE WORKPLACE ACT
                                                                        
 28        SECTION  2.  That  Section 72-1701, Idaho Code, be, and the same is hereby
 29    amended to read as follows:
                                                                        
 30        72-1701.  PURPOSE AND INTENT OF ACT. (1) The purpose of  this  act  is  to
 31    promote alcohol and drug-free workplaces and otherwise support private employ-
 32    ers  in  their  efforts  to  eliminate  substance  abuse in the workplace, and
 33    thereby enhance workplace safety and increase productivity.  This  act  estab-
 34    lishes  voluntary  drug  and  alcohol testing guidelines for private employers
 35    that, when complied with, will find an employee who tests positive  for  drugs
 36    or alcohol at fault, and will constitute misconduct under the employment secu-
 37    rity  law  as  provided  in section 72-1366, Idaho Code, thus resulting in the
 38    denial of unemployment benefits.
 39        (2)  It is the further purpose of this act to promote  alcohol  and  drug-
 40    free workplaces in order that employers in this state be afforded the opportu-
 41    nity to maximize their levels of productivity, enhance their competitive posi-
                                                                        
                                           2
                                                                        
  1    tions  in  the  marketplace  and reach their desired levels of success without
  2    experiencing the cost delays and tragedies associated with work-related  acci-
  3    dents resulting from substance abuse by employees.
                                                                        
  4        SECTION  3.  That  Section 72-1702, Idaho Code, be, and the same is hereby
  5    amended to read as follows:
                                                                        
  6        72-1702.  TESTING FOR DRUGS AND/OR ALCOHOL. (1) It is lawful for a private
  7    employer to test employees or prospective employees for the presence of  drugs
  8    or  alcohol  as  a  condition  of hiring or continued employment, provided the
  9    testing requirements and procedures are in compliance with 42  U.S.C.  section
 10    12101.
 11        (2)  Nothing  herein  prohibits an private employer from using the results
 12    of a drug or alcohol test conducted by a third party including, but  not  lim-
 13    ited to, law enforcement agencies, hospitals, etc., as the basis for determin-
 14    ing whether an employee has committed misconduct.
 15        (3)  This act does not change the at-will status of any employee.
                                                                        
 16        SECTION  4.  That  Section 72-1703, Idaho Code, be, and the same is hereby
 17    amended to read as follows:
                                                                        
 18        72-1703.  COST OF TESTING OF CURRENT EMPLOYEES. (1) Any  drug  or  alcohol
 19    testing  by an private employer of current employees shall be deemed work time
 20    for purposes of compensation.
 21        (2)  All costs of drug and alcohol testing for current employees conducted
 22    under the provisions of  this  act,  unless  otherwise  specified  in  section
 23    72-1706(2), Idaho Code, shall be paid by the private employer.
                                                                        
 24        SECTION  5.  That  Section 72-1704, Idaho Code, be, and the same is hereby
 25    amended to read as follows:
                                                                        
 26        72-1704.  REQUIREMENTS FOR SAMPLE COLLECTION AND TESTING. All sample  col-
 27    lection and testing for drugs and alcohol under this act shall be performed in
 28    accordance with the following conditions:
 29        (1)  The  collection  of  samples  shall be performed under reasonable and
 30    sanitary conditions;
 31        (2)  The private employer or private employer's agent who  is  responsible
 32    for  collecting the sample will be instructed as to the proper methods of col-
 33    lection;
 34        (3)  Samples shall be collected and tested with due regard to the  privacy
 35    of  the  individual being tested and in a manner reasonably calculated to pre-
 36    vent substitutions or interference with the collection or testing of  reliable
 37    samples;
 38        (4)  Sample  collection  shall  be documented and the documentation proce-
 39    dures shall include:
 40        (a)  Labeling of samples so as reasonably to preclude the  possibility  of
 41        misidentification of the person tested in relation to the test result pro-
 42        vided; and
 43        (b)  Handling  of  samples  in accordance with reasonable chain-of-custody
 44        and confidentiality procedures;
 45        (5)  Sample collection, storage and transportation to the place of testing
 46    shall be performed so as reasonably to preclude the possibility of sample con-
 47    tamination and/or adulteration;
 48        (6)  Sample testing shall conform to  scientifically  accepted  analytical
 49    methods and procedures;
                                                                        
                                           3
                                                                        
  1        (7)  Drug  testing  shall include a confirmatory test before the result of
  2    any test can be used as a basis for action by an private employer  under  sec-
  3    tions  72-1707 and 72-1708, Idaho Code. A confirmatory test refers to the man-
  4    datory second or additional test of the same sample that  is  conducted  by  a
  5    laboratory  utilizing  a chromatographic technique such as gas chromatography-
  6    mass spectrometry or another comparable reliable analytical method;
  7        (8)  Positive alcohol tests resulting from the use of  an  initial  screen
  8    saliva  test, must include a confirmatory test that utilizes a different test-
  9    ing methodology meant to demonstrate a higher degree of reliability;
 10        (9)  Positive alcohol tests resulting from the use of a breath  test  must
 11    include a confirmatory breath test conducted no earlier than fifteen (15) min-
 12    utes  after  the initial test; or the use of any other confirmatory test meant
 13    to demonstrate a higher degree of reliability.
                                                                        
 14        SECTION 6.  That Section 72-1705, Idaho Code, be, and the same  is  hereby
 15    amended to read as follows:
                                                                        
 16        72-1705.  PRIVATE  EMPLOYER'S  WRITTEN  TESTING  POLICY  --  PURPOSES  AND
 17    REQUIREMENTS  FOR COLLECTION AND TESTING. (1)  An private employer must have a
 18    written policy on drug and/or alcohol testing  that  is  consistent  with  the
 19    requirements  of  this act, including a statement that violation of the policy
 20    may result in termination due to misconduct.
 21        (2)  An private employer will receive the full benefits of this act,  even
 22    if  its  drug and alcohol testing policy does not conform to all of the statu-
 23    tory provisions, if it follows a drug or alcohol testing policy that was nego-
 24    tiated with its employees' collective bargaining  representative  or  that  is
 25    consistent with the terms of the collective bargaining agreement.
 26        (3)  Testing  for  the presence of drugs or alcohol by an private employer
 27    shall be carried out within the terms of a written policy that has been commu-
 28    nicated to affected employees, and is  available  for  review  by  prospective
 29    employees.
 30        (4)  The  private employer must list the types of tests an employee may be
 31    subject to in their written policy, which may include, but are not limited to,
 32    the following:
 33        (a)  Baseline;
 34        (b)  Preemployment;
 35        (c)  Post-accident;
 36        (d)  Random;
 37        (e)  Return to duty;
 38        (f)  Follow-up;
 39        (g)  Reasonable suspicion.
                                                                        
 40        SECTION 7.  That Section 72-1706, Idaho Code, be, and the same  is  hereby
 41    amended to read as follows:
                                                                        
 42        72-1706.  RIGHT  OF  EMPLOYEE  OR PROSPECTIVE EMPLOYEE TO EXPLAIN POSITIVE
 43    TEST RESULT AND REQUEST FOR RETEST. (1) Any employee or  prospective  employee
 44    who  tests  positive for drugs or alcohol must be given written notice of that
 45    test result,  including  the  type  of  substance  involved,  by  the  private
 46    employer. The employee must be given an opportunity to discuss and explain the
 47    positive test result with a medical review officer or other qualified person.
 48        (2)  Any  employee  or prospective employee who has a positive test result
 49    may  request that the same sample be retested by a mutually agreed upon  labo-
 50    ratory.  A  request for retest must be done within seven (7) working days from
 51    the date of the first confirmed positive test notification and may be paid for
                                                                        
                                           4
                                                                        
  1    by the employee or prospective employee requesting the  test.  If  the  retest
  2    results  in  a  negative test outcome, the private employer will reimburse the
  3    cost of the retest, compensate the employee for his time if suspended  without
  4    pay,  or if terminated solely because of the positive test, the employee shall
  5    be reinstated with back pay.
                                                                        
  6        SECTION 8.  That Section 72-1707, Idaho Code, be, and the same  is  hereby
  7    amended to read as follows:
                                                                        
  8        72-1707.  DISCHARGE  FOR  WORK-RELATED MISCONDUCT -- FAILURE OR REFUSAL OF
  9    TESTING. An private employer establishes that an employee was  discharged  for
 10    work-related  misconduct,  as  provided in section 72-1366, Idaho Code, upon a
 11    showing that the employer has complied with the requirements of this act chap-
 12    ter and that the discharge was based on:
 13        (1)  A confirmed positive drug test or a positive alcohol test,  as  indi-
 14    cated  by  a test result of not less than .02 blood alcohol content (BAC), but
 15    greater than the level specified in the employer's substance abuse policy;
 16        (2)  The employee's refusal to provide a sample for testing; or
 17        (3)  The employee's alteration or attempt to alter a test sample by adding
 18    a foreign substance for the purpose of making the  sample  more  difficult  to
 19    analyze; or
 20        (4)  The employee's submission of a sample that is not his or her own.
                                                                        
 21        SECTION  9.  That  Section 72-1708, Idaho Code, be, and the same is hereby
 22    amended to read as follows:
                                                                        
 23        72-1708.  PRIVATE EMPLOYER'S DISCIPLINARY OR REHABILITATIVE ACTIONS  BASED
 24    ON  TESTING  -- CLAIMANT INELIGIBLE FOR BENEFITS. (1) Unless otherwise prohib-
 25    ited, uUpon receipt of a confirmed positive drug or  alcohol  test  result  or
 26    other  proof which indicates a violation of an private employer's written pol-
 27    icy, or upon the refusal of an employee to provide a test sample, or  upon  an
 28    employee's  alteration  of  or  attempt  to  alter  a  test sample, an private
 29    employer may use that test result or the employee's conduct as the  basis  for
 30    disciplinary or refusal-to-hire action that will result in a claimant's ineli-
 31    gibility  to receive benefits under the provisions of section 72-1366(4), (5),
 32    (6) or (7), Idaho Code. Actions by the private employer may include,  but  are
 33    not limited to, the following:
 34        (a)  A  requirement  that  the  employee  enroll  in  an private employer-
 35        approved rehabilitation,  treatment,  or  counseling  program,  which  may
 36        include  additional  drug  or alcohol testing, as a condition of continued
 37        employment;
 38        (b)  Suspension of the employee with or without pay for a period of time;
 39        (c)  Termination of the employee;
 40        (d)  Other  disciplinary  measures  in  conformance   with   the   private
 41        employer's  usual  procedures,  including any collective bargaining agree-
 42        ment.
 43        (2)  Action taken pursuant to this section shall not create any  cause  of
 44    action against the private employer.
                                                                        
 45        SECTION  10.  That Section 72-1710, Idaho Code, be, and the same is hereby
 46    amended to read as follows:
                                                                        
 47        72-1710.  LIMITATIONS OF  EMPLOYER  LIABILITY.  (1)  No  cause  of  action
 48    arises  in  favor  of any person based upon the absence of an private employer
 49    established program or policy of drug or alcohol testing  in  accordance  with
                                                                        
                                           5
                                                                        
  1    this act chapter.
  2        (2)  No  cause  or action arises in favor of any person against an private
  3    employer for any of the following:
  4        (a)  Failure to test for drugs or alcohol, or failure to test for  a  spe-
  5        cific drug or other substance;
  6        (b)  Failure  to test for, or if tested, a failure to detect, any specific
  7        drug or other physical abnormality, problem or defect of any kind; or
  8        (c)  Termination or suspension of any drug or alcohol testing  program  or
  9        policy.
                                                                        
 10        SECTION  11.  That Section 72-1711, Idaho Code, be, and the same is hereby
 11    amended to read as follows:
                                                                        
 12        72-1711.  FALSE TEST RESULT -- PRESUMPTION AND LIMITATION  OF  DAMAGES  IN
 13    CLAIM AGAINST PRIVATE EMPLOYER. (1)  No cause of action arises in favor of any
 14    person  against  an private employer who has established a program of drug and
 15    alcohol testing in accordance with this act chapter, and  who  has  taken  any
 16    action  based on its established substance abuse and/or disciplinary policies,
 17    unless the private employer's action was based on a false test result, and the
 18    private employer knew or clearly should have known  that  the  result  was  in
 19    error.
 20        (2)  In  any  claim  where it is alleged that an private employer's action
 21    was based on a false test result:
 22        (a)  There is a rebuttable presumption that the test result was  valid  if
 23        the  private  employer  complied  with  the provisions of section 72-1704,
 24        Idaho Code;
 25        (b)  The private employer is not liable for monetary damages if his  reli-
 26        ance on a false test result was reasonable and in good faith; and
 27        (c)  There  is  no private employer liability for any action taken related
 28        to a "false negative" drug or alcohol test.
                                                                        
 29        SECTION 12.  That Section 72-1712, Idaho Code, be, and the same is  hereby
 30    amended to read as follows:
                                                                        
 31        72-1712.  CONFIDENTIALITY OF INFORMATION. (1) All information, interviews,
 32    reports, statements, memoranda or test results, written or otherwise, received
 33    through  a substance abuse testing program shall be kept confidential, and are
 34    intended to be used only for an private employer's internal business  use;  or
 35    in  a proceeding related to any action taken by or against an private employer
 36    under section 72-1707, 72,-1708 or  72-1711,  Idaho  Code,  or  other  dispute
 37    between  the private employer and the employee or applicant; or as required to
 38    be disclosed by the United States department of transportation law or  regula-
 39    tion or other federal law; or as required by service of legal process.
 40        (2)  The  information described in subsection (1) of this section shall be
 41    the property of the private employer.
 42        (3)  An private employer, laboratory, medical review  officer,    employee
 43    assistance  program,  drug or alcohol rehabilitation program and their agents,
 44    who receive or have access to information concerning test results  shall  keep
 45    the  information  confidential,  except  as provided in subsection (4) of this
 46    section.
 47        (4)  Nothing in this chapter prohibits  an  private  employer  from  using
 48    information  concerning  an  employee  or job applicant's substance abuse test
 49    results in a lawful manner with respect to that employee or applicant as  pro-
 50    vided in chapter 2, title 44, Idaho Code.
                                                                        
                                           6
                                                                        
  1        SECTION  13.  That Section 72-1714, Idaho Code, be, and the same is hereby
  2    amended to read as follows:
                                                                        
  3        72-1714.  NO PHYSICIAN-PATIENT RELATIONSHIP CREATED.  A  physician-patient
  4    relationship  is  not created between an employee or prospective employee, and
  5    the private employer or any person performing a drug or alcohol  test,  solely
  6    by the establishment of a drug or alcohol testing program in the workplace.
                                                                        
  7        SECTION  14.  That Section 72-1715, Idaho Code, be, and the same is hereby
  8    amended to read as follows:
                                                                        
  9        72-1715.  PUBLIC ENTITIES MAY CONDUCT PROGRAMS. The state of Idaho and any
 10    political subdivision thereof may conduct drug and alcohol testing of  employ-
 11    ees  under  the  provisions  of this chapter and as otherwise constitutionally
 12    permitted.
                                                                        
 13        SECTION 15.  That Section 72-1716, Idaho Code, be, and the same is  hereby
 14    amended to read as follows:
                                                                        
 15        72-1716.  IMPLEMENTATION  OF  ALCOHOL  AND  DRUG-FREE WORKPLACE PROGRAM --
 16    QUALIFICATION OF EMPLOYER PREMIUM REDUCTION. (1) For each policy  of  worker's
 17    compensation  insurance  issued  or  renewed  in the state on or after July 1,
 18    1999, a reduction in the premium for the policy may be granted if the  insurer
 19    determines  the insured has established and maintains an alcohol and drug-free
 20    workplace program that complies with  the  requirements  of  sections  72-1701
 21    through 72-1715, Idaho Code.
 22        (2)  The state of Idaho or any political subdivision thereof that conducts
 23    drug  and alcohol testing of all those employees and prospective employees for
 24    whom such testing is not constitutionally prohibited shall  qualify  for,  and
 25    may  be granted, the employer premium reduction set forth in subsection (1) of
 26    this section.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 12990
The purpose of this legislation is to expand the Idaho Drug-Free
Workplace Act to include public employers.  It clarifies that all
employers, both public and private, may choose to have a Drug-
Free Workplace Program.  It further establishes the components,
protections, and advantages afforded to all employers.  Based
upon compliance with the Act, it provides for a reduction that
may be granted in the employer premium for each policy of workers
compensation insurance.  This legislation also acknowledges that
public entities are limited by the restrictions of the U.S.
Constitution's Fourth Amendment. 
                          FISCAL IMPACT
There is no fiscal impact.

Contact
Name: Senator Sheila A. Sorensen 
Phone: 332-1319




STATEMENT OF PURPOSE/FISCAL NOTE           S1119