THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CRUZ, YOUNGBLOOD, READSHAW, CUTLER, DALEY, DeLUCA, EVANKOVICH AND ROAE, MAY 9, 2011

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, MAY 9, 2011  

AN ACT

Requiring the drug testing of certain employees and providing

penalties for positive drug tests.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Public

Employee Drug Testing Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Employee."  A Commonwealth worker who falls into any of the

following categories and works for any employer:

(1)  Home care and older adult services worker.

(2)  Teacher.

(3)  Child-care worker.

(4)  Elected official.

"Employer."  A Commonwealth agency that employs an employee.

Section 3.  Drug testing. 

(a)  Requirements.--The Department of General Services shall

contract with a drug testing corporation or company to

administer the provisions of this act. Before selecting the

corporation or company, the Department of General Services shall

use a competitive bidding process and shall look at the quality

of the drug testing performed and training courses offered.

(b)  Policies.--Each employer shall determine the frequency

and scope of the random and unannounced drug testing, with

assistance from the testing corporation or company selected

under subsection (a). The policy shall include a list of

prohibited drugs. The drug testing policies shall be explicitly

stated and given to the employees affected by this act. The

employer shall also determine what constitutes sufficient

documentation under the provisions of section 8.

(c)  Refusal.--If an employee refuses to participate in the

random drug testing performed under this act, the employee shall

be suspended under section 5. 

Section 4.  Public record.

Unless otherwise prohibited by Federal law or the laws of

this Commonwealth, the results of a random drug test shall be

available to the public under the act of February 14, 2008

(P.L.6, No.3), known as the Right-to-Know Law.

Section 5.  Suspension.

If an employee's drug test comes back positive, with any

indication of tampering or if the employee refused to take a

random drug test, the employee shall be suspended from all

employment activities that fall under the scope of this act. The

employee shall be offered a timely hearing. The employee shall

be informed of all rights and responsibilities, including the

ability to pay for a second drug test to rebut the employer's

random drug test.

Section 6.  Administrative hearing.

(a)  Hearing.--A hearing shall be conducted in accordance

with 2 Pa.C.S. (relating to administrative law and procedure) by

trained individuals.

(b)  Training.--The training shall consist of information

necessary to understand the process of drug testing, the results

given by the company or corporation and any defenses that may

generally arise. The training shall be given by the drug testing

company or corporation.

(c)  Determination.-- 

(1)  If an employee is found to be in compliance with the

employer's drug testing policy, the employee shall be

immediately reinstated and shall be given pay for the days

missed while on suspension.

(2)  If an employee is found not to be in compliance with

the employer's drug testing policy, the employee may be fired

with cause and any benefits terminated immediately. The

suspension shall not be paid unless the employee had earned

compensatory time, sick time or annual leave time. 

(d)  Refusal.--If an employee does not show up or refuses to

participate in a hearing, the employee may be regarded as having

been found not in compliance with the employer's drug policies.

(e)  Appeal.--The employee shall have the right to appeal any

adverse finding under this section to the court of common pleas. 

Section 7.  Records.

The employer shall maintain a database of when the randomized

drug testing was done, the results and any action taken against

an employee. These records shall be accessible by the public in

accordance with section 4 and shall be accessible to law

enforcement officers upon request when in conjunction with an

investigation on drug use, unless otherwise prohibited by

Federal or State law. These records shall be maintained for at

least ten years for each employee.

Section 8.  Applicability. 

(a)  Union members.--An employee who is a member of a union

on the effective date of this act shall be exempt from random

drug testing under this act until the next contract negotiation

by the union. 

(b)  Rehabilitation programs.--If an employee is in a drug

treatment program and provides sufficient documentation of

active participation in the treatment program, including

cooperation with any drug testing, the employer may temporarily

exempt the employee from any random drug testing. Any

information regarding the participation in a drug treatment

program shall not be designated a public record under the act of

February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

(c)  Exemption.--If an employee provides sufficient

documentation of a religious need to be exempted or a medical

reason why the employee cannot take a random drug test, the

employer shall exempt the employee from the provisions of this

act.

Section 9.  Severability.

The provisions of this act are severable. If any provision of

this act or its application to any person or circumstance is

held invalid, the invalidity shall not affect other provisions

or applications of this act which can be given effect without

the invalid provision or application.

Section 10.  Effective date.

This act shall take effect in 60 days.