By Isett H.B. No. 3128
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adoption of a drug-free workplace program by
1-3 employers and to a discount on workers' compensation insurance
1-4 premiums for employers who elect to participate in the program.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1. DRUG TESTING BY EMPLOYERS
1-7 SECTION 1.01. Subtitle A, Title 5, Labor Code, is amended by
1-8 adding Chapter 419 to read as follows:
1-9 CHAPTER 419. REQUIREMENTS FOR EMPLOYEE DRUG TESTING PROGRAMS
1-10 SUBCHAPTER A. GENERAL PROVISIONS
1-11 Sec. 419.001. DEFINITIONS. In this chapter:
1-12 (1) "Alcohol" means ethyl alcohol, hydrated oxide of
1-13 ethyl, or spirits of wine, from whatever source by whatever process
1-14 produced.
1-15 (2) "Chain of custody" means the methodology of
1-16 tracking specified materials, specimens, or substances for the
1-17 purpose of:
1-18 (A) maintaining control and accountability from
1-19 initial collection to final disposition for all the materials,
1-20 specimens, or substances; and
1-21 (B) providing for accountability at each stage
1-22 in handling, testing, and storing materials, specimens, or
1-23 substances and reporting of test results.
2-1 (3) "Confirmation test" means a second analytical
2-2 procedure used to identify the presence of a specific drug or
2-3 metabolite in a specimen that is:
2-4 (A) different in scientific principle from that
2-5 of the initial test procedure; and
2-6 (B) capable of providing requisite specificity,
2-7 sensitivity, and quantitative accuracy.
2-8 (4) "Drug" means:
2-9 (A) an amphetamine;
2-10 (B) a cannabinoid;
2-11 (C) cocaine;
2-12 (D) phencyclidine (PCP);
2-13 (E) an opiate;
2-14 (F) a barbiturate;
2-15 (G) a benzodiazepine;
2-16 (H) methadone;
2-17 (I) methaqualene;
2-18 (J) propoxyphene; or
2-19 (K) a metabolite of a substance listed in
2-20 Paragraphs (A)-(J).
2-21 (5) "Employee" means a person who works for salary,
2-22 wages, or other remuneration for an employer. The term includes a
2-23 part-time or leased employee.
2-24 (6) "Employee assistance program" means a program
2-25 designed to assist in the identification and resolution of job
2-26 performance problems associated with employees impaired by personal
3-1 concerns that provides a minimum level of core services, including:
3-2 (A) consultation and training;
3-3 (B) professional, confidential, appropriate, and
3-4 timely problem assessment services;
3-5 (C) short-term problem resolution;
3-6 (D) referrals for appropriate diagnosis,
3-7 treatment, and assistance;
3-8 (E) follow-up and monitoring;
3-9 (F) employee education; and
3-10 (G) quality assurance.
3-11 (7) "Employer" means a person who employs one or more
3-12 employees.
3-13 (8) "Initial test" means a sensitive, rapid, and
3-14 reliable procedure to identify negative and presumptive positive
3-15 specimens that uses an immunoassay procedure or an equivalent
3-16 procedure or, as more accurate technology becomes available in a
3-17 cost-effective form, another more accurate scientifically accepted
3-18 method approved by the United States Department of Health and Human
3-19 Services National Laboratory Certification Program.
3-20 (9) "Job applicant" means a person who has applied for
3-21 a position of employment and has been offered employment subject to
3-22 passing a substance abuse test. The term includes a person who has
3-23 begun work pending the results of the substance abuse test.
3-24 (10) "Medical review officer" means a licensed
3-25 physician trained in the field of testing for alcohol and other
3-26 drugs who, in compliance with regulations and guidelines as
4-1 prescribed by 49 C.F.R. Part 40:
4-2 (A) provides medical assessment of positive test
4-3 results;
4-4 (B) requests reanalysis if necessary; and
4-5 (C) makes a determination as to whether use of
4-6 alcohol or other drugs has occurred;
4-7 (11) "Nonprescription medication" means a drug or
4-8 other medication authorized under federal or state law for general
4-9 distribution and use in the treatment of human disease, ailments,
4-10 or injuries without a prescription.
4-11 (12) "Prescription medication" means a drug or other
4-12 medication lawfully prescribed by a physician for an individual to
4-13 be taken by the individual only in accordance with the terms of
4-14 prescription.
4-15 (13) "Reasonable suspicion testing" means substance
4-16 abuse testing based on evidence, drawn from specific objective and
4-17 articulable facts and reasonable inferences drawn from those facts
4-18 based on experience, that an employee is using or has used alcohol
4-19 or other drugs in violation of the employer's drug-free workplace
4-20 policy.
4-21 (14) "Rehabilitation program" means an established
4-22 program:
4-23 (A) capable of providing expert identification,
4-24 assessment, and resolution of employee abuse of alcohol or other
4-25 drugs in a confidential and timely manner; and
4-26 (B) in which services are provided by persons
5-1 licensed by the Texas Department of Health or other appropriately
5-2 licensed health professionals to provide alcohol and other drug
5-3 rehabilitative services.
5-4 (15) "Specimen" means a urine, blood, breath, hair,
5-5 tissue, or other sample of the human body capable of revealing the
5-6 presence of alcohol or other drugs or their metabolites.
5-7 (16) "Substance" means alcohol or other drugs.
5-8 (17) "Substance abuse test" means any chemical,
5-9 biological, or physical instrumental analysis administered to
5-10 determine the presence or absence of alcohol or other drugs or
5-11 their metabolites.
5-12 (18) "Threshold detection level" means the level at
5-13 which the presence of alcohol or other drugs can be reasonably
5-14 expected to be detected by an initial and confirmatory test
5-15 performed by a laboratory meeting the standards specified in this
5-16 chapter. The threshold detection level indicates the level at
5-17 which a valid conclusion can be drawn that alcohol or other drugs
5-18 are present in the employee's specimen.
5-19 Sec. 419.002. APPLICATION OF CHAPTER. (a) This chapter
5-20 applies to:
5-21 (1) an employer who elects to operate a program of
5-22 drug testing; and
5-23 (2) the employees of that employer.
5-24 (b) This chapter does not require an employer to conduct
5-25 drug testing of employees. An employer who elects to participate
5-26 in the drug-free workplace program under article 5.55A, Insurance
6-1 Code must comply with this chapter. An employer may establish
6-2 policies that are supplemental to and not inconsistent with this
6-3 chapter.
6-4 (c) This chapter governs all drug testing of employees whose
6-5 primary workplace is within this state, regardless of whether the
6-6 test is performed inside or outside this state, if the test is
6-7 conducted pursuant to the drug-free workplace program established
6-8 by article 5.55A, Insurance Code
6-9 (d) This chapter does not prevent the negotiation of
6-10 collective bargaining agreements that provide greater protection to
6-11 employees than the protections provided by this chapter and may not
6-12 be construed to limit the rights, privileges, or remedies of any
6-13 employee or collective bargaining representative under any other
6-14 state or federal law or regulation or under any collective
6-15 bargaining agreement or employment contract.
6-16 (e) This chapter does not prevent an employer from requiring
6-17 or performing medical examinations of employees as permitted by law
6-18 or from conducting medical screenings to monitor exposure to toxic
6-19 or other harmful substances in the workplace if those examinations
6-20 or screenings are not used to avoid the requirements of this
6-21 chapter.
6-22 (f) This chapter does not prevent an employer from adopting
6-23 rules related to the possession or use of a drug by an employee,
6-24 including rules relating to the consequences of a conviction for a
6-25 drug-related offense, or from taking an action based on a violation
6-26 of those rules, including termination of the employment.
7-1 (g) This chapter does not restrict an employer's authority
7-2 to prohibit the use or possession of alcohol or other drugs during
7-3 work hours.
7-4 (h) This chapter may not be construed to prevent an employer
7-5 from establishing reasonable work rules relating to employee
7-6 manufacture, sale, distribution, possession, or use of alcohol or
7-7 other drugs, including convictions for drug-related offenses, and
7-8 taking action based on a violation of any of those rules.
7-9 Sec. 419.003. RULES; DRUG-FREE WORKPLACE PROGRAM ELEMENTS.
7-10 (a) The commission by rule shall prescribe the elements of a
7-11 comprehensive drug-free workplace program under this chapter.
7-12 (b) The rules adopted under this section may require the
7-13 employer to provide in the employer's drug-free workplace program:
7-14 (1) a written policy statement explaining the
7-15 employer's policies on alcohol and drug abuse as applicable to
7-16 employees and job applicants;
7-17 (2) an employee assistance program or access to such
7-18 an assistance program;
7-19 (3) an employee education program regarding the
7-20 dangers of alcohol and drug abuse; and
7-21 (4) training for supervisors and other managerial
7-22 employees in handling issues regarding employee abuse of alcohol or
7-23 other drugs.
7-24 (c) The rules adopted under this section must require an
7-25 employer's drug-free workplace program to include substance abuse
7-26 testing that complies with the requirements prescribed by
8-1 Subchapter B.
8-2 (d) In addition to the requirements of Subsection (b), a
8-3 comprehensive drug-free workplace program must be implemented in
8-4 compliance with the confidentiality standards prescribed by
8-5 Subchapter C.
8-6 (Sections 419.004-419.050 reserved for expansion
8-7 SUBCHAPTER B. SUBSTANCE ABUSE TESTING
8-8 Sec. 419.051. TESTING REQUIREMENTS. (a) Unless the
8-9 commission by rule adopts different testing standards and
8-10 procedures, all testing conducted by an employer must be in
8-11 conformity with the standards and procedures established under 49
8-12 C.F.R. Part 40.
8-13 (b) An employer must require job applicants to submit to a
8-14 substance abuse test after an offer of employment and may use a
8-15 refusal to submit to drug testing or a positive confirmed test as a
8-16 basis for not hiring the job applicant.
8-17 (c) An employer must require an employee to submit to
8-18 reasonable suspicion testing.
8-19 (d) If an employee in the course of employment enters a drug
8-20 or alcohol rehabilitation program, the employer must require the
8-21 employee to submit to substance abuse testing as a follow-up to
8-22 that program. The frequency of the testing must be at least once
8-23 annually for a two-year period after completion of the program.
8-24 Advance notice of the testing date may not be given to the
8-25 employee.
8-26 (e) If the employee has caused or contributed to an accident
9-1 during the course of employment, the employer must conduct
9-2 postaccident substance abuse testing.
9-3 (f) The employee must submit to substance abuse testing if
9-4 the employee is returning to duty after any confirmed positive
9-5 test.
9-6 (g) This section does not prohibit a private employer from
9-7 conducting random testing or other lawful testing of employees.
9-8 (h) If testing is conducted based on reasonable suspicion,
9-9 the employer shall promptly detail in writing the circumstances
9-10 that formed the basis of the determination that reasonable
9-11 suspicion existed to warrant the testing. The employer shall give
9-12 a copy of this documentation to the employee. The employer shall
9-13 keep the original documentation confidential as provided by
9-14 Subchapter C and must retain the original documentation for at
9-15 least one year or throughout the duration of any legal proceedings
9-16 resulting from the testing if longer than one year.
9-17 Sec. 419.052. HANDLING OF TEST SPECIMENS. (a) Except as
9-18 otherwise provided by rule by the commission, a specimen must be
9-19 collected in accordance with the specimen collection procedures
9-20 described by regulations approved by:
9-21 (1) the United States Department of Health and Human
9-22 Services; or
9-23 (2) for alcohol testing, the United States Department
9-24 of Transportation regulations.
9-25 (b) A specimen must be collected with due regard to the
9-26 privacy of the individual providing the specimen and in a manner
10-1 reasonably designed to prevent substitution or contamination of the
10-2 specimen.
10-3 (c) Specimen collection and storage, and employee
10-4 transportation to the testing site, must be performed in a manner
10-5 that reasonably precludes specimen contamination or adulteration.
10-6 (d) An employee or job applicant shall have an opportunity
10-7 to provide notification of any information that may be considered
10-8 relevant to the test, including identification of currently or
10-9 recently used prescription or nonprescription drugs, or other
10-10 relevant medical information. This opportunity must include
10-11 procedures for review by a qualified medical review officer in the
10-12 case of a sample that tests positive in a confirmation test.
10-13 (e) Each initial and confirmation test conducted under this
10-14 section, not including the taking or collecting of a specimen to be
10-15 tested, must be conducted by a laboratory certified by the United
10-16 States Department of Health and Human Services National Laboratory
10-17 Certification Program or, for alcohol, must be handled in
10-18 accordance with United States Department of Transportation
10-19 regulations relating to alcohol testing.
10-20 (f) A specimen for a test may be taken or collected by:
10-21 (1) a physician, physician's assistant, registered
10-22 nurse, licensed vocational nurse, or advanced nurse practitioner;
10-23 (2) a certified emergency medical technician who is
10-24 present at the scene of an accident to render emergency medical
10-25 service or treatment;
10-26 (3) a qualified person certified or employed by a
11-1 laboratory certified by the United States Department of Health and
11-2 Human Services National Laboratory Certification Program; or
11-3 (4) a qualified person certified or employed by a
11-4 specimen collection company.
11-5 (g) An employer who performs specimen collection shall use
11-6 chain of custody procedures to ensure proper recordkeeping,
11-7 handling, labeling, and identification of all specimens to be
11-8 tested.
11-9 (h) An initial test with a positive result must be verified
11-10 by a confirmation test or it shall be certified as a negative
11-11 result.
11-12 (i) An employer shall pay the cost of all initial and
11-13 confirmation substance abuse tests that the employer requires of
11-14 job applicants or employees.
11-15 (j) An employee or job applicant shall pay the cost of any
11-16 additional tests that the employee or job applicant requests.
11-17 Sec. 419.053. NOTIFICATION OF TEST RESULTS. (a) Not later
11-18 than the fifth business day after the date of receipt of a positive
11-19 confirmed test result from the laboratory, an employer shall inform
11-20 an employee or job applicant in writing of the positive test
11-21 result, the consequences of the result, and the options available
11-22 to the employee or job applicant.
11-23 (b) The employer shall provide to the employee or job
11-24 applicant, on request, a copy of the test results.
11-25 Sec. 419.054. REQUIREMENTS FOR TESTING LABORATORIES. (a) A
11-26 laboratory may not analyze initial or confirmation drug specimens
12-1 unless the laboratory is certified by the National Laboratory
12-2 Certification Program.
12-3 (b) A laboratory shall disclose to the employer a written
12-4 test result report not later than the seventh business day after
12-5 the date of receipt of the sample. All laboratory reports of a
12-6 substance abuse test result shall, at a minimum, state:
12-7 (1) the name and address of the laboratory that
12-8 performed the test and the positive identification of the person
12-9 tested;
12-10 (2) positive results on confirmation tests only, or
12-11 negative results, as applicable;
12-12 (3) a list of the drugs for which the drug analyses
12-13 were conducted; and
12-14 (4) the types of tests conducted for both initial and
12-15 confirmation tests and the minimum cutoff levels of the tests.
12-16 (c) A report under this section may not disclose the
12-17 presence or absence of any drug other than a specific drug and its
12-18 metabolites listed under this chapter.
12-19 (d) The laboratory shall provide technical assistance to the
12-20 employer, employee, or job applicant to interpret any positive
12-21 confirmed test results that could have been caused by prescription
12-22 or nonprescription medication taken by the employee or job
12-23 applicant.
12-24 (e) Each positive initial test must be confirmed using the
12-25 gas chromatography/mass spectrometry (GC/MS) method or an
12-26 equivalent or more accurate and scientifically accepted method
13-1 approved by the National Laboratory Certification Program as the
13-2 technology becomes available in a cost-effective form.
13-3 Sec. 419.055. ABSENCE OF PHYSICIAN-PATIENT PRIVILEGE. A
13-4 physician-patient relationship is not created between an employee
13-5 or job applicant and an employer, medical review officer, or
13-6 substance abuse testing laboratory performing or evaluating a
13-7 substance abuse test solely by the establishment, implementation,
13-8 or administration of a substance abuse testing program.
13-9 (Sections 419.056-419.100 reserved for expansion
13-10 SUBCHAPTER C. CONFIDENTIALITY REQUIREMENTS
13-11 Sec. 419.101. CONFIDENTIALITY REQUIREMENTS. (a) All
13-12 information, interviews, reports, statements, memoranda, and test
13-13 results, written or otherwise, received by the employer through a
13-14 substance abuse testing program are confidential communications as
13-15 they relate to the tested employee or job applicant and may not be
13-16 used or received in evidence, obtained in discovery, or disclosed
13-17 in any public or private proceedings, except in accordance with
13-18 this chapter.
13-19 (b) Employers, laboratories, medical review officers, and
13-20 their agents who receive or have access to information concerning
13-21 test results shall keep all information confidential. Release of
13-22 the information under any circumstance other than as authorized by
13-23 this chapter shall be solely under a written consent form signed
13-24 voluntarily by the person tested unless the release is compelled by
13-25 a state agency or a court or unless considered appropriate by a
13-26 professional or occupational licensing board in a related
14-1 disciplinary proceeding.
14-2 (c) A consent form used under Subsection (b) must contain at
14-3 a minimum:
14-4 (1) the name of the person who is authorized to obtain
14-5 the information;
14-6 (2) the purpose of the disclosure;
14-7 (3) the precise information to be disclosed;
14-8 (4) the duration of the consent; and
14-9 (5) the signature of the person authorizing release of
14-10 the information.
14-11 (d) This subchapter may not be construed to prohibit the
14-12 employer, agent of the employer, or laboratory conducting a test
14-13 from having access to employee testing program information when
14-14 consulting with legal counsel in connection with actions related to
14-15 this chapter or when the information is relevant to its defense in
14-16 a civil or administrative matter.
14-17 Sec. 419.102. EFFECT OF OTHER LAW; USE OF INFORMATION IN
14-18 CRIMINAL PROCEEDING. (a) This chapter may not be construed to call
14-19 for actions that may violate federal or state confidentiality
14-20 statutes for employee assistance professionals and alcohol and
14-21 other drug abuse counseling or treatment providers.
14-22 (b) Information on test results may not be released or used
14-23 in a criminal proceeding against the employee or job applicant.
14-24 Information released contrary to this section is inadmissible as
14-25 evidence in a criminal proceeding.
14-26 (Sections 419.103-419.150 reserved for expansion
15-1 SUBCHAPTER D. REHABILITATION; DISCIPLINARY PROCEDURES
15-2 Sec. 419.151. REHABILITATIVE PROCEDURES; DISCIPLINARY
15-3 PROCEDURES. (a) On receipt of a confirmed positive substance abuse
15-4 test result that indicates a violation of the employer's written
15-5 policy, or on the refusal of an employee or prospective employee to
15-6 provide a testing sample, an employer may use that confirmed test
15-7 result or test refusal as a valid basis for rehabilitative or
15-8 disciplinary actions.
15-9 (b) Actions under this section may include a requirement
15-10 that the employee enroll in an employee assistance program or an
15-11 employer-provided or employer-approved rehabilitation, treatment,
15-12 or counseling program licensed by the state. These programs may
15-13 include additional substance abuse testing, participation in which
15-14 may be a condition of continued employment, and the costs of which
15-15 may or may not be covered by the employer's health benefit plan.
15-16 (c) Disciplinary actions under this section may include:
15-17 (1) suspension of the employee, with or without pay,
15-18 for a designated period;
15-19 (2) termination of employment;
15-20 (3) refusal to hire a prospective employee; and
15-21 (4) other actions in conformance with the employer's
15-22 written policy and procedures, including any applicable collective
15-23 bargaining agreement provisions.
15-24 ARTICLE 2. INSURANCE PREMIUM DISCOUNT
15-25 SECTION 2.01. Subchapter D, Chapter 5, Insurance Code, is
15-26 amended by adding Article 5.55A to read as follows:
16-1 Art. 5.55A. WORKERS' COMPENSATION INSURANCE PREMIUM DISCOUNT
16-2 FOR EMPLOYERS WITH DRUG-FREE WORKPLACE. (a) In this article,
16-3 "insurer" means a stock company, mutual company, reciprocal,
16-4 interinsurance exchange, Lloyd's plan, or other entity authorized
16-5 to write workers' compensation insurance in this state. The term
16-6 includes the Texas workers' compensation insurance fund.
16-7 (b) This article applies to an employer who holds a
16-8 certificate of a drug-free workplace issued by the Texas Workers'
16-9 Compensation Commission under Section 411.092, Labor Code.
16-10 (c) The commissioner by rule shall adopt a plan under which
16-11 each insurer shall grant a discount to an employer subject to
16-12 Subsection (b) of this article who obtains workers' compensation
16-13 insurance coverage from that insurer and applies for the discount
16-14 in the manner prescribed by the commissioner. The insurer shall
16-15 grant a discount in a percentage set by the commissioner by rule on
16-16 the amount of the employer's workers' compensation premium. The
16-17 percentage set by the commissioner must be at least five percent.
16-18 (d) A discount established under this article is valid for
16-19 the term of the policy or contract of insurance. On renewal of the
16-20 policy or contract, the employer must reapply for the discount in
16-21 the manner prescribed by the commissioner.
16-22 (e) A discount under this article is in addition to any
16-23 other premium discount to which the employer is eligible under this
16-24 code.
16-25 ARTICLE 3. CONFORMING AMENDMENTS
16-26 SECTION 3.01. The heading to Subchapter G, Chapter 411, Labor
17-1 Code, is amended to read as follows:
17-2 SUBCHAPTER G. POLICY FOR ELIMINATION OF DRUGS
17-3 IN THE WORKPLACE; CERTIFICATION PROGRAM
17-4 SECTION 3.02. Subchapter G, Chapter 411, Labor Code, is
17-5 amended by amending Section 411.092 and adding Section 411.093 to
17-6 read as follows:
17-7 Sec. 411.092. CERTIFICATION PROGRAM. (a) An employer who
17-8 has workers' compensation insurance coverage may adopt a drug-free
17-9 workplace program under Chapter 419. The commission shall issue a
17-10 certificate to each employer maintaining a program adopted under
17-11 Chapter 419 who is determined by the commission, after an
17-12 investigation by the division, to meet the requirements of Chapter
17-13 419.
17-14 (b) A certificate issued under this section is valid for one
17-15 year from the date of issuance and may be renewed by the employer
17-16 on application to the commission and reinvestigation by the
17-17 division.
17-18 Sec. 411.093. IMPLEMENTATION [ENFORCEMENT]; RULES. The
17-19 commission shall implement this subchapter [enforce Section
17-20 411.091] and may adopt rules for that purpose.
17-21 ARTICLE 4. EFFECTIVE DATE
17-22 SECTION 4.01. This Act takes effect September 1, 2001.