GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 752

Short Title:  Comprehensive Drug-Free Workplace Policy.    	(Public)
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Sponsors: Senators Shaw and Sands.
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Referred to:  State Personnel and State Government.
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April 23, 1991

A BILL TO BE ENTITLED
AN ACT TO CREATE A DRUG-FREE WORKPLACE FOR EMPLOYEES OF THE STATE OF NORTH CAROLINA.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 126 of the General Statutes is amended by adding a new Article to read:
“ARTICLE 15.
"Drug-Free Workplace Act.
"§ 126-89.  Title.
This Article shall be known and may be cited as the ‘Drug-Free Workplace Act.'
"§ 126-90.  Definitions.
As used in this Article or subsequent policies:
(1)	‘Agency' shall mean institutions, State agencies, universities, community colleges, public schools, the legislature, the executive and the judicial system.
(2)	‘Certified personnel' shall mean those persons who take employee specimen samples, maintain chain of custody procedures, analyze samples, and report findings to the employer.  Personnel shall be certified by either the American Board of Pathology or the National Institute of Drug Abuse.
(3)	‘Collection site' shall mean a place where applicants and employees present themselves to provide, under controlled conditions, a urine or breathalyzer test which will be analyzed for the presence of drugs or alcohol.
(4)	‘Collection site personnel' shall mean a person who instructs individuals at the collection site and who receives and makes initial examination of the test sample provided by those individuals.
(5)	‘Confirmatory drug test' shall mean a second analytical procedure used to identify the presence of a specific drug, its metabolite or alcohol.  The confirmatory test must be different in scientific principle from that of the initial test procedure.  At this time gas/chromatography/mass spectrometry (GC/MS) shall be used.
(6)	‘Confirmed positive results' shall mean the presence of an illicit substance or its metabolites at or above the following cutoff levels:a.Cannabis: 100 ng/ml Initial Test
 15	ng/ml Confirmatory Test
b.	Opiates:	300	ng/ml Initial Test
		300	ng/ml Confirmatory Test
c.	Cocaine:	300	ng/ml Initial Test
		150	ng/ml Confirmatory Test
d.	PCP:	 25	ng/ml Initial Test
		 25	ng/ml Confirmatory Test
e.	Amphetamines:	1000	ng/ml Initial Test
		1000	ng/ml Confirmatory Test
	(ng/ml = nanagrams per milliliter).
	The presence of an illicit substance or its metabolites shall be identified in two consecutive tests which employ different test methods and which were not determined by the appropriate medical, scientific, professional testing, or forensic authority not to have been caused by an alternate medical explanation or technically insufficient data.
(7)	‘Consent and acknowledgement form' shall mean a form that informs the employee on substances they will be tested for and the consequences of receiving a confirmed positive test result.
(8)	‘Conviction' shall mean a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of federal or State criminal drug statutes.
(9)	‘Criminal drug statute' shall mean a federal or nonfederal criminal statute involving the manufacture, distribution, use, or possession of any controlled substance.
(10)	‘Drug' shall mean alcoholic beverages as defined in G.S. 18B-101(4), and controlled substances as defined in Chapter 90 of Article 5 of the General Statutes.
(11)	‘Drug-Free Workplace Training Fund' shall mean a newly created fund within the Office of State Personnel.
(12)	‘Drug test' shall mean any preemployment or reasonable cause chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug, its metabolites or alcohol.
(13)	‘Drug Testing Fund' shall mean, if an agency decides to implement a drug testing program, then the agency shall establish a line item within its budget to pay for the reasonable cause drug and/or alcohol test administered to its employees.
(14)	‘Elected or appointed official' shall mean a person elected or appointed to the legislative, executive, or judicial branches of government.
(15)	‘Employee' shall mean all full-time and part-time permanent and temporary employees of the State of North Carolina.
(16)	‘Employee assistance program' shall mean an assessment service which provides early identification, motivation, and referral for individuals with poor job performance in any given work setting due to a variety of personal situations including alcohol and drug related problems, family and marital problems, and emotional and psychological problems.  The service is offered in partnership with employers with whom the area program has a written agreement and provides employee education, supervisory training, referral, follow-up and program evaluation.
(17)	‘Exempt positions' shall mean those positions not governed by the State Personnel Act.
(18)	‘Impaired' shall mean such performance and/or behavior which would indicate to the observer that the employee's ability to handle job assignments safely and efficiently may be compromised.
(19)	‘Initial drug test' shall mean a sensitive, rapid, and reliable immunoassay procedure to identify negative and presumptive positive specimens.  The breathalyzer shall be used for determining the presence or absence of alcohol.
(20)	‘Manager' shall mean any supervisor, division director, or department head who manages other State employees in the executive, legislative, or judicial branch; community college, institution, university, or public school unit.
(21)	‘Medical review officer' shall mean a licensed physician who reviews and interprets positive results of confirmatory tests and evaluates those results together with medical history or any other relevant biomedical information to confirm positive results.  This person shall have knowledge of substance abuse and shall have the appropriate medical or forensic training.
(22)	‘Negative results' shall mean the absence of an illicit substance or its metabolites in sufficient quantities to be identified by either an initial test or confirmatory test or as determined by a Medical Review Officer.  Results shall be determined to be negative if the levels fall below the following cutoff levels:
a.	Cannabis:	 100 ng/ml	Initial Test
			15 ng/ml	Confirmatory Test
b.	Opiates:	 300 ng/ml	Initial Test
		 300 ng/ml 	Confirmatory Test
c.	Cocaine:	 300 ng/ml	Initial Test
		 150 ng/ml	Confirmatory Test
d.	PCP:	  25 ng/ml	Initial Test
			25 ng/ml	Confirmatory Test
e.	Amphetamines:	1000 ng/ml	Initial Test
		1000 ng/ml	Confirmatory Test
	(ng/ml = nanagrams per milliliter).
(23)	‘Nonexempt positions' shall mean those positions governed by the State Personnel Act.
(24)	‘Preemployment' shall mean prior to being hired/appointed as an employee of a State agency, institution, community college, university, public school system, the legislative, executive, or the judicial branches of government.
(25)	‘Reasonable cause drug testing' shall mean a screening used to determine the presence of drugs or alcohol.  Such screening is based on a belief that an employee, during work hours or in a State workplace, is using or has used alcohol or drugs.  Such belief should be based on specific objective and articulative facts and reasonable inferences drawn from those facts in light of experience.  Such facts and inferences shall be limited to one of the following:
a.	Direct observations of abnormal conduct or erratic behavior by the employee which render the employee unable to perform his/her duties or which pose a threat to safety or health.
b.	A report of observed alcohol or drug use provided by a reliable and credible source.
c.	An on-the-job accident or occurrence where there is reasonable evidence to indicate the accident or occurrence, in whole or in part, may have been the result of the employee's use of drugs or alcohol.
(26)	‘Release of information form' shall mean a form which outlines what information will be released to management from an employee assistance program referral, and acknowledges to the employee assistance program counselors that this is a mandatory referral.
(27)	‘Sensitive positions' shall mean any position of employment in State government determined by the Office of State Personnel to be critical to the safety of other employees and/or the public.
(28)	‘Workplace' shall mean any facility, office, building, property, or vehicle owned, leased, or operated by the State of North Carolina.
"§ 126-91.  Purpose of Drug-Free Workplace Policy.
The use of illegal drugs, alcohol or misuse of legal drugs in State workplaces or during working hours is unacceptable.  Unlawful manufacture, distribution, sale, possession, or use of controlled substances, and the use of alcoholic beverages is prohibited in the State workplace.  Employees who work under the influence of illegal drugs, alcohol, or misuse of legal drugs may exhibit poor work performance or have an effect on the health or safety of fellow employees and/or the general public.  A preemployment drug testing program shall be implemented, in accordance with this act, by each agency of the State by July 1, 1992.  Agencies may choose to implement a reasonable cause drug testing program.  However, when implementing such a program, agencies shall operate in strict compliance with this act.  Agencies now testing employees shall have one year from the date of ratification to bring existing drug testing programs in compliance with this act.
"§ 126-92.  Preemployment drug testing.
In an effort to ensure a drug-free workplace, each agency of State government shall implement a preemployment drug testing program to be administered to each successful job applicant and newly elected or newly appointed member of the legislative, executive, or judicial branches.  The Office of State Personnel shall develop the policies and procedures, provide training, and shall maintain a central file of all applicants who tested positive for a period of one year from the date of the receipt of test results, as outlined in G.S. 126-97 of this act.  Each agency shall notify the Office of State Personnel with the name of the applicant and the title of the position of the applicant who was refused employment.  Testing shall be conducted to determine the use of marijuana/cannabinoids (THC), alcohol, cocaine metabolites, opiates, phencyclidine (PCP), and amphetamines/methamphetamines.  Persons already employed by the State and seeking a transfer, promotion, an elected official who has been reelected, or an official who has been reappointed shall not be required to submit to preemployment drug testing.  In administering this test the following shall apply:
(1)	Each preemployment drug test shall be conducted by a laboratory certified by the National Institute of Drug Abuse (NIDA) and shall be the lab contracted on behalf of the State by the Office of State Personnel in accordance with the rules in G.S. 143-49 and G.S. 143-53.
(2)	The successful applicant and the newly elected or newly appointed official may choose to pay for the test out-of-pocket, or be allowed to have the cost of the preemployment drug test payroll deducted from the first month's salary.  An invoice from the selected NIDA approved lab shall be submitted to the agency payroll office, which will authorize payment to be made by the State on behalf of the prospective employee.
(3)	If a positive initial test result occurs, a confirmatory test using the gas/chromatography/mass spectrometry (GC/MS) shall be performed.  If the second analytical test shows a confirmed positive result the prospective employee shall not be hired, shall be barred from employment with the State for a period of one year, and shall assume direct responsibility for payment of the test.
(4)	If an elected or appointed official receives a positive initial and a positive confirmatory drug test, the results shall be sent to the appropriate governing ethics body for disciplinary action and referral to an employee assistance program.
(5)	The following language shall be included in all vacancy announcements for State employment:
	"The applicant tentatively selected for this position will be required to submit to a urinalysis test for illegal drug use prior to being permanently hired.  By submitting and signing this application for employment the applicant acknowledges and consents to this requirement.
(6)	The following language shall appear on all applications used for employment with the State:
	‘Have you been denied employment with the State during the past year as a result of a positive confirmatory drug test? ..... yes ..... no.'
"§ 126-93.  State employee rights.
Every effort shall be made by managers to protect the rights of employees.  Managers shall notify all employees of the following rights and shall observe these rights:
(1)	A manager shall not request a reasonable cause drug or alcohol test based on unsupported rumors or innuendos.
(2)	Disclosure of information concerning an employee being tested shall be limited to the manager(s) (only those involved in the decision to have an employee tested), the agency personnel director (if required), the collection site personnel, and/or the medical review officer.
(3)	Information concerning test results, referrals to rehabilitation programs, or disciplinary actions shall remain confidential and limited to only those managers involved in the decisions concerning the employee in question.
(4)	An employee's efforts to voluntarily obtain help, prior to the problem being determined by management, shall not result in immediate disciplinary action or dismissal.
(5)	An employee, at his own expense, may request a second confirmatory test be performed using the original sample by a lab from the approved list of labs maintained in the Office of State Personnel.  Management shall withhold final disciplinary action until the results of the test are submitted to the employee and management.  The employee shall agree to release the results of the second test or management may proceed with disciplinary action up to and including dismissal.  If the original sample is lost or damaged and cannot be used to perform a second test upon the employee's request, then the first test shall be rendered invalid and no disciplinary action concerning the test shall be permitted.  If the second test produces a negative result, then the agency shall pay for that test.  The second test shall be conducted under the same procedures outlined in this act.
"§ 126-94.  Disciplinary actions.
It is the employee's responsibility to seek help for such problems before they must be addressed at the work site or otherwise become apparent as unsatisfactory job performance and/or work habits.  Such voluntary action on the part of the employee shall be viewed as responsible and shall be supported by management and the supervisor.  Employees determined by administrative or other investigation to be involved in:
(1)	The illegal manufacture, distribution, or sale of alcohol or drugs in State workplaces or during work hours shall be subject to disciplinary action up to and including dismissal.
(2)	The illegal use of alcohol or drugs in State workplaces or during work hours shall require the  employee to meet with a counselor from the employee assistance program to determine if appropriate, the proper rehabilitation needed.
(3)	A condition determined to exist under G.S. 126-94(2) above, which refers an employee to an employee assistance program, may result in the dismissal of that employee if:
a.	There is a refusal to attend the scheduled employee assistance program conference; or,
b.	There is failure to successfully complete the employee assistance program recommended course of action.
Managers shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior  to successful completion of rehabilitation through an employee assistance program.  However, as part of a rehabilitation or counseling program, the head of an agency may, at his discretion, allow an employee to return to duty in a sensitive position, if it is determined that this action would not pose a danger to public health or safety.
An employee convicted of any criminal drug statute violation must notify his supervisor within five calendar days after such conviction.  Failure to provide notification shall result in disciplinary action or dismissal.  Disciplinary actions concerning an elected or appointed member of the judiciary or legislature shall be handled by the appropriate governing ethics body.
"§ 126-95.  Abuse of authority.
Any manager who is determined by administrative or other investigation to have abused the authority granted under this act as a means of harassing an employee or group of employees or to have required drug testing without reasonable cause shall be subject to dismissal.  Any manager who knowingly ignores an alcohol or drug problem with an employee which impairs job performance, and fails to act in a responsible manner in accordance with the authority granted under this act, shall be subject to disciplinary action up to and including dismissal.
"§ 126-96.  Office of State Personnel responsibilities.
The Office of State Personnel shall be responsible for the following:
(1)	Developing procedures and guidelines for implementing the State's Drug-Free Workplace Policy pursuant to this act which shall include the chain of custody procedures for test samples.  Security procedures shall be sufficient to ensure the collection and test of a valid sample.
(2)	Developing and conducting manager training programs for all agencies governed by this act.  Such training shall be conducted in cooperation with agency managers and shall include all positions in a supervisory capacity.  Such training shall include at least the following components:
a.	A program to inform employees of the dangers of alcohol and drug abuse in the workplace; and
b.	The responsibilities of managers and employees as outlined in this act.  Each employee shall receive a copy of the State's Drug-Free Workplace Policy; and
c.	A list of all available NIDA certified labs and a list of rehabilitation programs for employees seeking assistance with an alcohol or drug abuse problem; and
d.	Appropriate actions to be taken by managers concerning drug testing of employees.
(3)	Maintaining a central confidential file of applicants testing positive who were denied employment for a period of one year from the date of receipt of the positive confirmatory preemployment drug test.  The central files shall include applicants from all State agencies, institutions, community colleges, universities, and public school units.
(4)	Shall assist agencies in meeting certification requirements of federal agencies.
(5)	Shall work with the Superintendent of Public Instruction, the President of the Department of Community Colleges, and the President of the University of North Carolina General Administration to implement this act.
(6)	Shall establish the minimum acceptable standards which must be met by an employee assistance program in order to be approved.
(7)	Shall manage the Drug-Free Workplace Training Fund.
(8)	Shall report annually to the General Assembly on the following:
a.	The number of preemployment drug tests conducted on behalf of each agency during the previous fiscal year, as conducted under the conditions outlined in G.S. 126-93 of this act; and
b.	The number of reasonable cause drug tests conducted on behalf of each agency; and
c.	A report outlining the effectiveness of the North Carolina Drug-Free Workplace Policy.
(9)	Shall maintain a list of sensitive positions in State government.
Resources appropriated for the implementation of this act shall be used for no other purpose.
"§ 126-97.  Agency responsibilities.
If an agency elects to implement a reasonable cause drug testing program, then that agency must pay for the cost of the tests  and the services of an approved employee assistance program.  In addition, each agency shall have the following responsibilities:
(1)	To appoint a Drug-Free Workplace Coordinator who shall be responsible for coordinating training with the Office of State Personnel.  The Drug-Free Workplace Coordinator shall certify to the Office of State Personnel that all managers have completed the training program.
(2)	To ensure, as outlined in G.S. 126-92, that necessary steps have been taken to implement a preemployment drug testing program.
(3)	To provide the services of an employee assistance program designed to provide rehabilitation for an employee who tests positive for alcohol or drugs.  (Services of the Employee Assistance Program within the Office of State Personnel and the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services within the Department of Human Resources shall be available for agencies to contract with.)
(4)	To report annually to the Office of State Personnel the following:
a.	The number of preemployment drug tests conducted by each agency during the fiscal year; and
b.	The number of reasonable cause drug tests conducted by each agency.
"§ 126-98.  Scope of reasonable cause drug testing programs.
When implementing a reasonable cause drug testing program, employees covered by this act shall include the following:
(1)	All positions employed and subject to the State Personnel Act; and
(2)	All exempt and nonexempt positions employed by the Executive, Legislative, and Judicial Branches of government; and
(3)	All State elected positions; and
(4)	All positions employed by a State institution, agency, university, community college, and public school system; and
(5)	All other positions employed by the State, except for positions of appointments not receiving a salary.
"§ 126-99.  Reasonable cause drug testing.
Drug testing of State employees shall be limited to reasonable cause drug testing as defined in this act.  If an agency decides to implement a reasonable cause drug testing program, then every effort shall be made to protect the rights of employees; therefore, reasonable cause drug testing shall occur only when conditions outlined in this act or included in procedures and/or guidelines established by the Office of State Personnel pursuant to this act exist.  Reasonable cause drug testing shall be administered under the following conditions:
(1)	That each reasonable cause drug test shall be conducted by a laboratory certified by the National Institute of Drug Abuse (NIDA) and shall be the lab contracted on behalf of the State by the Office of State Personnel in accordance with the rules in G.S. 143-49 and G.S. 143-53; and
(2)	That the cost of the reasonable cause drug test shall be paid by the agency; and
(3)	The belief that an employee is using or has used alcohol or illicit drugs based on specific objective and articulative facts and reasonable inferences drawn from those facts in light of experience.  Such facts and inferences shall be limited to one of the following:
a.	Direct observations of abnormal conduct or erratic behavior by the employee which render the employee unable to perform his/her duties or which pose a threat to others safety or health; or
b.	A report of observed alcohol or drug use provided by a reliable and credible source; or
c.	An on-the-job accident or occurrence where there is evidence to indicate the accident or occurrence, in whole or in part, may have been the result of the employee's use of drugs or alcohol.
(4)	The immediate supervisor, after consultation with and approval from the division director, may request from the department head permission to drug test an employee, if conditions outlined in G.S. 126-99(3) exist.  In the case of an elected or appointed member of the General Assembly, the request for a reasonable cause drug test may be initiated by any member of the House or Senate through the Speaker of the House or the President of the Senate, respectively.  Documentation of the events leading to the request for drug testing shall be maintained in the office of the Speaker of the House or the President of the Senate, and shall remain confidential.  In the case of an elected or appointed official of the judiciary, the request for a reasonable cause drug test may be initiated by a credible source to the Judicial Standards Commission.
(5)	If all security procedures and guidelines developed by the Office of State Personnel for the collection of urine specimens, or in the case of alcohol abuse the administering of the breathalyzer test, have been followed.
(6)	If the initial reasonable cause drug test results are positive, a confirmatory test using the gas/chromatography/mass spectrometry (GC/MS) shall be performed.  If the second analytical test shows a confirmed positive result the employee shall be required to report for a scheduled appointment with a counselor from an employee assistance program for enrollment in an appropriate rehabilitation program.
"§ 126-100.  Reported criminal drug statute violations.
When required by the Federal Drug-Free Workplace Act of 1988, department management shall notify the appropriate federal contracting agency that an employee has been convicted of a criminal drug statute.
"§ 126-101.  Other drug testing laws.
Nothing in this statute shall be construed to interfere with federal law or the Criminal Justice Standards Commission to regulate drug testing.  However, where otherwise not prohibited by law, when a State employee has tested positive under federal law or Criminal Justice Standards Commission regulations, that employee shall be suspended from his duties and required to enroll in an appropriate rehabilitation program, to be determined by a counselor in an employee assistance program.  Upon successful completion of the appropriate rehabilitation program, a counselor from an employee assistance program, with cooperation from the Employment Security Commission, shall make a good faith effort to locate other suitable employment with the State for that employee.  If other suitable employment cannot be found or if the employee fails to successfully complete the prescribed rehabilitation program, he may be dismissed."
Sec. 2.  This act shall be fully funded and is effective upon ratification.