Employment Privacy; Substance
Abuse Testing
Allows the State of Hawaii or State political or governmental
subdivision employers to require applicants, appointees,
employees, elected officials, and independent contractors to
submit to drug testing.  Does not apply to the work positions
under federal regulation, or to positions covered by drug testing
provisions found in state departments of transportation rules or
in collective bargaining agreements.

HB HMIA 2000-60
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                     A BILL FOR AN ACT



 1      SECTION 1.  Title 21, Hawaii Revised Statutes, is amended by
 2 adding a new chapter to be appropriately designated and to read
 3 as follows:
 4                             "CHAPTER
 6         -1  Right to privacy in the workplace.  It is the public
 7 policy of the State of Hawaii that all citizens enjoy the benefit
 8 of the right to privacy in the workplace in accordance with
 9 article I, sections 6 and 7 of the Hawaii Constitution.  It is
10 also the public policy of the State of Hawaii that all public
11 workers (as that term is defined in this section) are the
12 servants of the public, in accordance with article I, section 1
13 and article VII of the Hawaii Constitution.  As such, the Hawaii
14 state government and all of its political and governmental
15 subdivisions owe the public a duty of efficient, effective, safe
16 and economical services that puts neither people or property at
17 risk of injury nor wastes taxpayer money.  The purpose of this
18 chapter is to ensure and enhance the quality of public service
19 and to secure public trust through adoption of a system of

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 1 substance abuse screening and testing that assists in achieving
 2 the compelling state interest of eliminating substance abuse 
 3 among public workers in the workplace.
 4         -2 Definitions.  As used in this chapter:
 5      "Applicant" means a person seeking employment with the State
 6 of Hawaii and all political and other governmental subdivisions
 7 of the State.
 8      "Alcohol" means ethyl alcohol or ethanol.
 9      "Appointee" means any person appointed to a position, for
10 compensation, with either the Hawaii state government, or any
11 political or other governmental subdivision of the State.
12      "Board" means the Hawaii labor relations board.
13      "Confirmatory test" means a drug or alcohol test that uses a
14 method of analysis determined to be reliable as provided in
15 chapter 329B and rules adopted thereunder in establishing the
16 identity and quantity of alcohol, drugs, or metabolites of drugs
17 detected in an initial screening test.
18      "Department" means the department of labor and industrial
19 relations.
20      "Director" means the director of labor and industrial
21 relations.
22      "Drug" means a controlled substance as defined in chapter
23 329.

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 1      "Elected Official" means any person who is elected to office
 2 for either the State of Hawaii or any political or other
 3 governmental subdivision of the State.
 4      "Employee" means any person who performs services for
 5 compensation for either the State of Hawaii or any political or
 6 other governmental subdivision of the State, but shall not be
 7 construed as including an independent contractor.
 8      "Employer" means either the state of Hawaii or any political
 9 or other governmental subdivision of the State.
10      "Independent contractor" means a person or entity that
11 undertakes to perform work for an employer pursuant to contract,
12 express or implied, without being subject to the control of an
13 employer except as to the result of the work performed.
14      "Positive test result" means a finding through confirmatory
15 testing of the presence of drugs, alcohol, or the metabolites of
16 drugs in the sample tested in the levels at or above the cutoff
17 levels as established by chapter 329B and the rules adopted
18 thereunder.
19      "Prospective Employee" means any person who has made an
20 application to an employer, whether written or oral, to become an
21 employee.
22      "Public Worker" means any appointee, employee, elected
23 official, or independent contractor as those terms are defined

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 1 and used in this section.
 2      "Random selection basis" means a mechanism for selection of
 3 persons for testing that:
 4      (1)  Results in an equal probability that any person from a
 5           group subject to the selection mechanism will be
 6           selected; and
 7      (2)  Does not give an employer discretion to waive the
 8           selection of any person selected under the mechanism.
 9      "Reasonable cause" means a basis for forming a belief based
10 on specific facts and rational inferences about a person drawn
11 from those facts and is limited to the following:
12      (1)  The person is observed to exhibit social or emotional
13           behavior in the workplace significantly different from
14           the person's usual behavior or former behavior that
15           cannot be reasonably explained by the person following 
16                     inquiry by the employer;
17      (2)  The person is observed to exhibit impaired sensory,
18           motor, or intellectual abilities in the workplace as
19           compared to the person's usual or former abilities that
20           cannot be reasonably explained following inquiry by the
21           employer;
22      (3)  The person is found by a physician, after examination,
23           to exhibit physiological symptoms characteristic of

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 1           drug or alcohol abuse;
 2      (4)  There exists a documented and severe decline in the
 3           quantity or quality of a person's work that cannot be
 4           reasonably explained by the person following inquiry by
 5           the employer; or
 6      (5)  There exists a documented history of work-related
 7           accidents involving the person that significantly
 8           exceeds the average accident rate for similarly
 9           situated employees of the employer that is not
10           reasonably explained by the person following inquiry by
11           the employer.
12      "Safety-sensitive position" means:
13      (1)  A job, including any supervisory or management
14           position, the performance of which would present a
15           significant life-threatening danger to the person in
16           the job, co-workers, or the public if the person in the
17           job is under the influence of a drug or alcohol or
18           which demands the exercise of discriminating judgment
19           or a high degree of care and caution where the health
20           or safety of the person in the job, co-workers, or the
21           public is significantly involved; or
22      (2)  A job directly related to enforcement of state or
23           federal laws prohibiting the illegal use, sale,

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 1           manufacture, or transportation of drugs or alcohol.
 2      (3)  "Substance abuse test" means any testing procedure,
 3           excluding toxicology tests used in the direct clinical
 4           management of patients and tests for alcohol related to
 5           chapters 286 and 291, designed to take and analyze body
 6           fluids or materials from the body for the purpose of
 7           measuring the presence or absence of drugs, alcohol, or
 8           the metabolites of drugs in the sample tested.
 9         -3 Testing; when permitted.(a)  Except as provided in 
10           subsection (b), an employer shall not require, request,
11           or suggest that any applicant, appointee, elected
12           official, employee, or independent contractor submit to
13           a substance abuse test as a condition of employment or
14           of continued employment.
15      (b)  An employer may require an applicant, appointee,
16 elected official, employee, or independent contractor to submit
17 to a substance abuse test only under the following circumstances:
18      (1)  The employer has made a conditional job offer to the
19           applicant, and the same test is requested or required
20           of all applicants conditionally offered employment for
21           that position;
22      (2)  The appointee, elected official, employee or
23           independent contractor is given adequate notice, as

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 1           required by this chapter, and is asked to submit to a
 2           random test to which all similarly situated persons are
 3           equally subject.
 4      (3)  The employer has a reasonable cause to believe that the
 5           appointee, elected official, employee or independent
 6           contractor is under the influence of drugs or alcohol;
 7      (4)  The appointee, elected official, employee or
 8           independent contractor has sustained a personal injury,
 9           has caused another appointee, elected official,
10           employee or independent contractor to sustain a
11           personal injury, or has caused a work-related accident
12           and the employer has a reasonable cause to believe that
13           the injury or accident was a result of the appointee,
14           elected official, employee or independent contractor
15           having been under the influence of alcohol or drugs or
16           alcohol; or
17      (5)  The appointee, elected official, employee or
18           independent contractor has violated the employer's work
19           rules prohibiting the use, possession, sale, or
20           transfer of drugs or alcohol while on the employer's
21           premises, or is operating the employer's vehicle,
22           machinery, or equipment; provided the work rules are in
23           writing and contained in the employer's written

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 1           substance abuse testing policy.
 2      (c)  No employer shall require, request, or suggest that any
 3 person submit to a substance abuse test which does not meet all
 4 the requirements of this chapter, except for those persons who
 5 are covered by any substance abuse testing rules or regulations
 6 adopted by the state department of transportation, the United
 7 States Department of Transportation, or any other federal agency,
 8 or by a substance abuse testing provision under a collective
 9 bargaining agreement.  An employer may require, request, or
10 suggest that a person submit to substance abuse testing pursuant
11 to subsection (b) only if all of the following requirements are
12 met:
13      (1)  The testing is undertaken pursuant to a written
14           substance abuse testing policy which complies with
15           section    -5;
16      (2)  The testing complies with the procedures in
17           section    -6;
18      (3)  The employer assumes the cost for the testing; and
19      (4)  The employer has established an employee assistance
20           program in which persons who test positive for
21           substance abuse may participate at the expense of the
22           employer.  The employer may meet this requirement by
23           participating in a cooperative employee assistance

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 1           program that serves the employees of more than one
 2           employer.
 3         -4 Laboratory requirements.  All substance abuse
 4 testing performed pursuant to this chapter shall be performed
 5 only by a testing laboratory and only in accordance with the
 6 testing procedures and standards as provided in chapter 329B and
 7 the rules adopted thereunder.
 8         -5 Employer substance abuse testing policy; notice,
 9 contents.(a)  An employer shall provide a copy of its substance
10 abuse testing policy to:
11      (1)  Each appointee, elected official, employee or
12           independent contractor on the date of employment or the
13           contract or on the date of adoption of the policy,
14           whichever is later, and each applicant on the date of
15           application; and, 
16      (2)  An employer shall also post notices in an appropriate
17           and conspicuous location on the employer's premises if
18           the employer amends its substance abuse testing policy
19           and shall make a copy of any amendments available to
20           each employee or independent contractor not less than
21           forty-five days prior to the effective date of the
22           amendment.
23      (b)  An employer's substance abuse testing policy shall set

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 1 forth the following:
 2      (1)  The persons subject to testing under the policy;
 3      (2)  The circumstances under which the testing may be
 4           required;
 5      (3)  The right of a person to refuse the testing and the
 6           consequences of refusal;
 7      (4)  Any adverse action that may be taken against a person
 8           based upon a positive test result;
 9      (5)  The right of a person to explain a positive test result
10           or to request a confirmatory retest;
11      (6)  The specific substances that will be screened by the
12           test and a statement that over-the-counter medications
13           or other prescribed drugs may result in a positive test
14           result and that disclosure of the use of such
15           medications or drugs may not be used as a basis to
16           terminate, limit, or deny appointment or employment;
17      (7)  The availability of an appeal procedure to challenge a
18           positive test result; and
19      (8)  Any other information as may be required by the
20           director.
21         -6  Testing procedures.  (a)  Prior to the collection of
22 any sample for testing, an employer shall give written notice to
23 a person of the employer's intent to require that person to

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 1 submit to substance abuse testing.  The notice shall be provided
 2 in such a manner as to ensure that the confidentiality of the
 3 person is not breached and to provide a means to verify the date
 4 and time that the notice was delivered.  The person shall be
 5 afforded at least eight hours (based on regularly scheduled work
 6 hours from which the person is not lawfully absent) to provide a
 7 sample for testing following notice.  The notice shall contain
 8 the following:
 9      (1)  The location where the sample is to be collected, the
10           type of sample to be collected, and the deadline by
11           which the sample must be provided;
12      (2)  The basis for the determination to test, if applicable,
13           including a summary of all the evidence upon which the
14           employer intends to rely in support of that
15           determination;
16      (3)  The notice of the right of the person to appeal the
17           determination to test; and
18      (4)  A medication disclosure form to permit the person to
19           disclose any over-the-counter medication or prescribed
20           drug that the person has taken within the previous
21           thirty days which may result in a positive test result
22           shall be provided to the person as provided in chapter
23           329B; and
24      (5)  Any other information as may be required by the

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 1           director.
 2      (b)  Each employer shall comply with the procedures adopted
 3 by the director of health pursuant to chapter 329B with respect
 4 to the following:
 5      (1)  Procedures for taking of samples that ensure privacy to
 6           the persons tested and prevent or detect tampering with
 7           the sample;
 8      (2)  Chain of custody procedures to ensure proper
 9           identification, labeling, and handling of the samples
10           to be tested;
11      (3)  Retention and storage procedures and durations to
12           ensure availability of samples for retesting when
13           necessary; and
14      (4)  Procedures to ensure confidentiality of the substance
15           abuse testing procedures and substance abuse test
16           information.
17         -7 Determination of safety-sensitive position.  Upon
18 the filing of a request by an employer, employee, applicant,
19 independent contractor, elected official or appointee the
20 director shall make a determination as to whether a job is
21 considered to be a safety-sensitive position.  The director's
22 decision shall be subject to review by the Hawaii labor relations
23 board if any party submits a request to the board within ninety

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 1 days of the director's determination.  The request shall be
 2 considered by the board in accordance with section 89-5.
 3         -8 Right to appeal employer determination to test;
 4 review panel.(a)  Any person who is required to undergo
 5 substance abuse testing by the employer pursuant to section
 6    -3(b)(3) or (4) shall have the right to appeal to the Hawaii
 7 labor relations board the employer's determination to test.  The
 8 employer's decision shall be subject to review by the board if
 9 any party submits a request to the board within ninety days of
10 the employer's determination.  The request shall be considered by
11 the board in accordance with section 89-5.
12      (b)  The employer may require that a sample be taken for
13 purposes of testing at the time notice of testing is given;
14 provided no test shall be performed on that sample pending the
15 decision on the appeal by the board.  The employer shall bear the
16 burden of proving by a preponderance of the evidence that the
17 determination to test is justified.
18      (c)  If the board upholds the determination to test, the
19 test shall be conducted without delay.  If the board finds the
20 determination to test is not justified, the sample shall be
21 destroyed without being tested.  No disciplinary action may be
22 taken against the person to be tested pending the decision on the
23 appeal by the board.

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 1         -9  Retest; request by person tested.  Any person
 2 required to submit to a test under this chapter which results in
 3 a positive test result shall be entitled to request a retest.
 4 Any retest so requested shall be at the expense of the person
 5 tested; provided that if the retest result is negative, the
 6 employer shall reimburse the person for any payment made for the
 7 retest.
 8         -10  Disclosure of test results; confidentiality.  Any
 9 information concerning a substance abuse test pursuant to this
10 chapter shall be strictly confidential.  The information shall
11 not be released to anyone without the informed written consent of
12 the person tested and shall not be released or made public upon
13 subpoena or any other method of discovery except that information
14 related to a positive test result shall be disclosed to the
15 employer, the person tested, and any third party or decisionmaker
16 in a lawsuit, grievance, or other proceeding initiated by or on
17 behalf of the person tested and arising from a positive test
18 result.  Any person who receives or comes into possession of any
19 information protected under this chapter shall be subject to the
20 same obligation of confidentiality as the party from whom the
21 information was received.
22         -11  Invalidation of test results.  Failure to adopt or
23 adhere to all the procedures contained in this chapter shall

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 1 invalidate the test result and the result may not be reported or
 2 otherwise used for any purpose.
 3         -12  Disciplinary actions against employees.  (a)  An
 4 employer shall not discharge, discipline, discriminate against,
 5 or request or require rehabilitation of a person prior to the
 6 receipt of a positive test result.  An employer may temporarily
 7 suspend with pay or transfer at the same rate of pay a person
 8 pending the outcome of a confirmatory test; provided the employer
 9 reasonably believes that the action is necessary to protect the
10 health or safety of the person, co-workers, or the public.  A
11 person may be suspended without pay pending the outcome of a
12 confirmatory retest requested by that person; provided that if
13 the retest result is negative, the employer shall reimburse the
14 person any back pay lost during the suspension without pay.
15      (b)  The person tested shall be afforded the opportunity to
16 rebut or explain a positive test result and the employer may not
17 unreasonably disregard the evidence or explanation provided by
18 that person.  An employer may not discharge a person whose
19 positive test result was the first such result for that person on
20 a substance abuse test requested by the employer if the person
21 complies with one of the following provisions:
22      (1)  The person agrees to: (a) either go on leave without
23           pay or continue working; and, (b) participate in an

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 1           employee assistance program at the employer's expense,
 2           which meets the program standards set by the
 3           Association of Labor-Management Administrators and
 4           Consultants on Alcoholism and successfully completes
 5           the employee assistance program; or
 6      (2)  If the person elects not to participate in an employee
 7           assistance program, the person is willing to submit to
 8           not more than six subsequent substance abuse tests
 9           performed at randomly selected times over a six-month
10           period which may be at the person's expense and the
11           test results are negative.
12      (c)  While a person is participating in a substance abuse
13 rehabilitation program, including an employee assistance program,
14 substance abuse testing may be conducted without notice by the
15 rehabilitation or treatment provider as required, requested, or
16 suggested by that provider; provided that:
17      (1)  The results of any substance abuse tests so
18           administered may not be released to the employer if the
19           person is on leave without pay;
20      (2)  An employer may not require, request, or suggest that
21           any substance abuse test be administered to any person
22           while the person is undergoing the rehabilitation or
23           treatment if the person is on leave without pay; and

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 1      (3)  The testing shall comply with the procedures and
 2           standards in this chapter.
 3      (d)  The person tested may not be terminated from employment
 4 if the person agrees to participate in and then successfully
 5 completes the employee assistance program.  The person may be
 6 suspended only for the period of time necessary to complete the
 7 program but in no event longer than three months.  The person may
 8 be terminated if: (1) after successfully completing an employee
 9 assistance program, while on leave without pay, the person is
10 subsequently administered a substance abuse test which results in
11 a positive finding; or, (2) at any time while not on leave
12 without pay, the person is subsequently administered a substance
13 abuse test which results in a positive finding.
14      (e)  An employer shall not refuse to hire, discharge,
15 discipline, discriminate against, or request or require
16 rehabilitation of a person on the basis of medical history
17 information revealed to the employer in connection with a
18 substance abuse test under this chapter unless the person was
19 under an affirmative duty to provide that information before,
20 upon, or after hire.
21         -13  Federal preemption.  This chapter shall not apply
22 to employees, applicants, and independent contractors when the
23 specific work performed requires those persons to be subject to

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 1 substance abuse testing pursuant to:
 2      (1)  Federal regulations that specifically preempt state
 3           regulation of substance abuse testing with respect to
 4           those persons;
 5      (2)  Federal regulations or requirements necessary to
 6           operate federally regulated facilities; or
 7      (3)  Federal contracts where the substance abuse testing is
 8           expressly mandated for security, safety, or protection
 9           of sensitive or proprietary data.
10         -14  Construction.  Nothing in this chapter shall be
11 construed to restrict an employer's authority to prohibit the
12 nonprescribed use of drugs or alcohol during work hours, or
13 restrict an employer's authority to discipline, suspend, or
14 dismiss a person for the use of drugs or alcohol during work
15 hours.
16         -15  Unlawful searches and seizures.  Employees,
17 appointees, elected officials and independent contractors shall
18 be secure in their personal papers and effects and in other areas
19 where they reasonably may expect privacy against unreasonable
20 searches, seizures, and invasions of privacy by the employer.  No
21 employer may demand, require, or request employees, appointees,
22 elected officials, or independent contractors submit to searches
23 of the body, person, personal affects of a person, or other areas

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 1 where employees reasonably may expect privacy as a condition of
 2 continued employment other than the testing procedures explicitly
 3 set forth herein.  Nothing in this chapter shall prohibit an
 4 employer from requiring a specific employee, appointee, elected
 5 official, or independent contractor to submit to an appropriate
 6 search if the employer has reasonable grounds to believe that the
 7 employee, appointee, elected official, or independent contractor
 8 is in possession of unlawful substances on the employer's
 9 premises or that the employee is impaired in the performance of
10 duties and responsibilities and presents a clear and present
11 danger to the physical safety of the person, another person
12 working for the employer or to a member of the public.  Under no
13 circumstance may an employer request, require, or conduct random
14 company-wide searches of an employee's person, personal effects,
15 or other areas where the employee reasonably may expect privacy.
16         -16  Remedies.(a)  Any aggrieved person or employee
17 organization representing an aggrieved applicant or employee may
18 appeal any action of the director by filing a request for review
19 with the Hawaii labor relations board within ninety days of the
20 director's determination.  The request shall be considered by the
21 board in accordance with section 89-5.  A violation of this
22 chapter shall be considered a prohibited practice under chapter
23 89 and the board shall provide appropriate remedies where a

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 1 violation has been found.
 2      (b)  Any employer or person who knowingly violates any
 3 provision of this chapter shall be fined not less than $1,000 and
 4 not more than $10,000 for each violation plus reasonable court
 5 costs and attorney's fees as determined by the court, which
 6 penalty and costs shall be paid to the aggrieved person.  This
 7 subsection shall not be construed as limiting the right of any
 8 person or persons to recover actual damages.
 9      (c)  In addition to any other enforcement mechanism allowed
10 by law, any employer or person who commits, or proposes to
11 commit, any act in violation of any provision of this chapter may
12 be enjoined therefrom by a court of competent jurisdiction.  An
13 action for injunctive relief under this subsection may be brought
14 by any aggrieved person who will fairly and adequately represent
15 the interests of the protected class.
16         -17  Rules.  The department shall adopt rules under
17 chapter 91 necessary to implement this chapter."
18      SECTION 2.  Section 89-5, Hawaii Revised Statutes, is
19 amended by amending subsection (b) to read as follows:
20      "(b)  In addition to the powers and functions provided in
21 other sections of this chapter, the board shall:
22      (1)  Establish procedures for, investigate, and resolve, any
23           dispute concerning the designation of an appropriate

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 1           bargaining unit and the application of section 89-6 to
 2           specific employees and positions;
 3      (2)  Resolve any dispute concerning cost items;
 4      (3)  Establish procedures for, resolve disputes with respect
 5           to, and supervise the conduct of, elections for the
 6           determination of employee representation;
 7      (4)  Conduct proceedings on complaints of prohibited
 8           practices by employers, employees, and employee
 9           organizations and take such actions with respect
10           thereto as it deems necessary and proper;
11      (5)  Hold such hearings and make such inquiries, as it deems
12           necessary, to carry out properly its functions and
13           powers, and for the purpose of such hearings and
14           inquiries, administer oaths and affirmations, examine
15           witnesses and documents, take testimony and receive
16           evidence, compel attendance of witnesses and the
17           production of documents by the issuance of subpoenas,
18           and delegate such powers to any member of the board or
19           any person appointed by the board for the performance
20           of its functions;
21      (6)  Establish, after reviewing nominations submitted by the
22           public employers and employee organizations, lists of
23           qualified persons, broadly representative of the

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 1           public, to be available to serve as mediators, members
 2           of fact-finding boards, or arbitrators;
 3      (7)  Establish daily or hourly rates at which mediators,
 4           members of fact-finding boards, and arbitrators serving
 5           pursuant to section 89-11(b)(3) are to be compensated
 6           and apportion the costs of arbitration to the parties
 7           involved;
 8      (8)  Conduct studies on problems pertaining to public
 9           employee-management relations, and make recommendations
10           with respect thereto to the legislative bodies; request
11           information and data from state and county departments
12           and agencies and employee organizations necessary to
13           carry out its functions and responsibilities; make
14           available to employee organizations, as may exist,
15           mediators, members of fact-finding boards, arbitrators,
16           and other concerned parties statistical data relating
17           to wages, benefits, and employment practices in public
18           and private employment to assist them in resolving
19           issues in negotiations; and
20      (9)  Accept and make determinations on appeals of
21           employment-related substance abuse testing pursuant to
22           chapter  ; and
23 [(9)](10) Adopt rules relative to the exercise of its powers and

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                                     H.B. NO.           

 1           authority and to govern the proceedings before it in
 2           accordance with chapter 91."
 3      SECTION 3.  If any provision of this Act, or the application
 4 thereof to any person or circumstance is held invalid, the
 5 invalidity does not affect other provisions or applications of
 6 the Act which can be given effect without the invalid provision
 7 or application, and to this end the provisions of this Act are
 8 severable.
 9      SECTION 4.  It is the intent of this Act not to jeopardize
10 the receipt of any federal aid nor to impair the obligation of
11 the State or any agency thereof to the holders of any bond issued
12 by the State or by any such agency, and to the extent, and only
13 to the extent, necessary to effectuate this intent, the governor
14 may modify the strict provisions of this Act, but shall promptly
15 report any such modification with reasons therefor to the
16 legislature at its next session thereafter for review by the
17 legislature.
18      SECTION 5.  Statutory material to be repealed is bracketed.
19 New statutory material is underscored.
20      SECTION 6.  This Act shall take effect upon its approval.
23                         INTRODUCED BY:___________________________

HB HMIA 2000-60