Report Title:

CIVIL SERVICE REFORM; DRUG TESTING

 

Description:

Amends law to exclude drug testing, drug testing procedures, and sanctions from collective bargaining. Implements new program of drug testing for public safety sensitive positions. Requires mandatory termination for repeated drug offenses by workers in public safety sensitive positions.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1396

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CIVIL SERVICE REFORM.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78 – Definitions. For purposes of this part:

"Controlled substance" means a drug, substance, or immediate precursor in Schedules I through V of chapter 329, part II.

"During the period of employment" means the start date of employment until the date of separation and includes off-duty hours, holidays, and weekends.

"Safety sensitive positions" means positions which require unimpeachable integrity and judgment, enhance public safety, impact the care of human life, require unimpaired performance to avoid risk to the health and safety of the public, or involve the custody and maintenance of truly sensitive information, including but not limited to the following categories:

(1) Positions requiring the ability to carry firearms, including police officers, adult corrections officers, harbor patrol officers, department of land and natural resource patrols, investigators for the Department of the Attorney General, the Prosecuting Attorney, and the Department of Public Safety, State Law Enforcement Officers, sheriffs, and any other positions authorized to carry firearms;

(2) Positions located in an adult correctional facility or youth correction facility including social workers, medical personnel, education, kitchen, office, and work-line staff, treatment providers, and counselors, and supervisors of these positions;

(3) Positions authorized to administer controlled substances including doctors, nurses, emergency medical technicians, and physician assistants;

(4) Positions requiring a commercial drivers license;

(5) Positions requiring unimpaired performance to avoid risk to the health or safety of the public including drivers of passenger carrying vehicles or equipment vehicles;

(6) Lifeguards, water safety officers, firefighters, and other positions involved in life-saving activities, responding to emergencies, or rescue operations;

(7) Positions with responsibility for the security of government buildings;

(8) Positions requiring unimpeachable integrity and judgment including deputy attorney generals, deputy corporations counsels, and deputy prosecuting attorneys, but excluding members of the judiciary; and

(9) Positions which involve the custody and maintenance of truly sensitive information including public employees who must have a military security clearance in order to perform their jobs."

SECTION 2. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78 - Safety-sensitive positions; mandatory drug testing and termination for two strikes. (a) Each director shall identify all safety sensitive positions within its jurisdiction, consistent with the purpose of this part, which shall be required to undergo mandatory random controlled substance testing. To implement this part, the director shall establish a written policy setting forth the manner in which individuals are chosen to be tested, the type of test to be given, and the consequences of a positive controlled substance test, including adverse actions, additional testing, counseling and treatment, and any other requirements.

(b) All public employees in safety sensitive positions in the jurisdiction shall be required to undergo mandatory random controlled substance testing pursuant to the director's written policy.

(c) There is a rebuttable presumption that a public employee testing positive for a controlled substance during the period of employment was in fact using controlled substances during the period of employment.

(d) Any conviction for a controlled substance related offense, which occurred during the period of employment, shall be an irrebuttable presumption that the public employee was in fact using controlled substances during the period of employment.

(e) Any public employee covered by this section, using controlled substances once during the period of employment, may be placed on mandatory leave, be required to undergo additional drug testing, and be required to receive counseling and treatment pursuant to the director's written policy.

(f) Any public employee using controlled substances twice during the period of employment shall be immediately terminated and shall be ineligible for public employment in a safety sensitive position for not less than five years thereafter.

(g) Any adverse action taken against an employee for using controlled substances may be grieved and appealed as provided for in section _____, as other adverse actions taken for non-disciplinary reasons."

SECTION 3. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78- Mandatory termination for two convictions. (a) All public employees in positions not defined as safety sensitive positions, regardless of the positions they occupy, shall be subject during the period of employment to a determination of unsuitability resulting in immediate termination if they are convicted twice for a controlled substance-related offense. In implementing this section, subsections (d), (f), and (g) of section 78-____ shall apply.

(b) Each director shall adopt rules necessary to implement this section."

SECTION 4. Act 253, Session Laws of Hawaii 2000, is amended by amending section 98 to read as follows:

"§89-9 Scope of negotiations; consultation. [Section effective July 1, 2002. For section effective until June 30, 2002, see above.] (a) The employer and the exclusive representative shall meet at reasonable times, including meetings sufficiently in advance of the April 16 impasse date under section 89-11, and shall negotiate in good faith with respect to wages, hours, the amounts of contributions by the State and respective counties to the Hawaii public employees health fund to the extent allowed in subsection (e), and other terms and conditions of employment which are subject to collective bargaining and which are to be embodied in a written agreement as specified in section 89-10, but such obligation does not compel either party to agree to a proposal or make a concession; provided that the parties may not negotiate with respect to cost items as defined by section 89-2 for the biennium 1999 to 2001, and the cost items of employees in bargaining units under section 89-6 in effect on June 30, 1999, shall remain in effect until July 1, 2001.

(b) The employer or the exclusive representative desiring to initiate negotiations shall notify the other party in writing, setting forth the time and place of the meeting desired and the nature of the business to be discussed, sufficiently in advance of the meeting.

(c) Except as otherwise provided in this chapter, all matters affecting employee relations, including those that are, or may be, the subject of a rule adopted by the employer or any director, shall be subject to consultation with the exclusive representatives of the employees concerned. The employer shall make every reasonable effort to consult with exclusive representatives and consider their input, along with the input of other affected parties, prior to effecting changes in any major policy affecting employee relations.

(d) Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii public employees health fund, recruitment, examination, initial pricing, drug testing, procedures for drug testing, sanctions for positive drug test results, and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative shall not agree to any proposal which would be inconsistent with the merit principle or the principle of equal pay for equal work pursuant to section 76-1 or which would interfere with the rights and obligations of a public employer to:

(1) Direct employees;

(2) Determine qualifications, standards for work, the nature and contents of examinations;

(3) Hire, promote, transfer, assign, and retain employees in positions;

(4) Suspend, demote, discharge, or take other disciplinary action against employees for proper cause;

(5) Relieve an employee from duties because of lack of work or other legitimate reason;

(6) Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations;

(7) Determine methods, means, and personnel by which the employer's operations are to be conducted; and

(8) Take such actions as may be necessary to carry out the missions of the employer in cases of emergencies.

The employer and the exclusive representative may negotiate procedures governing the promotion and transfer of employees to positions within a bargaining unit; the suspension, demotion, discharge, or other disciplinary actions taken against employees within the bargaining unit; and the layoff of employees within the bargaining unit. Violations of the procedures so negotiated may be subject to the grievance procedure in the collective bargaining agreement.

(e) Negotiations relating to contributions to the Hawaii public employees health fund shall be for the purpose of agreeing upon the amounts which the State and counties shall contribute under section 87-4, toward the payment of the costs for a health benefits plan, as defined in section 87-1(8), and group life insurance benefits, and the parties shall not be bound by the amounts contributed under prior agreements; provided that section 89-11 for the resolution of disputes by way of fact-finding or arbitration shall not be available to resolve impasses or disputes relating to the amounts the State and counties shall contribute to the Hawaii public employees health fund.

(f) The repricing of classes within an appropriate bargaining unit may be negotiated as follows:

(1) At the request of the exclusive representative and at times allowed under the collective bargaining agreement, the employer shall negotiate the repricing of classes within the bargaining unit. The negotiated repricing actions that constitute cost items shall be subject to the requirements in section 89-10.

(2) If repricing has not been negotiated under paragraph (1), the employer of each jurisdiction shall ensure establishment of procedures to periodically review, at least once in five years, unless otherwise agreed to by the parties, the repricing of classes within the bargaining unit. The repricing of classes based on the results of the periodic review shall be at the discretion of the employer. Any appropriations required to implement the repricing actions that are made at the employer's discretion shall not be construed as cost items."

SECTION 6. New statutory material is underscored.

SECTION 7. Sections 1, 2, and 3 of this Act shall take effect on January 1, 2002. Section 4 of this Act shall take effect upon approval.

 

INTRODUCED BY:

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