Public Act 095-0635
 
HB1855 Enrolled LRB095 09720 WGH 31800 b

    AN ACT concerning employment.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 1. Short title. This Act may be cited as the
Substance Abuse Prevention on Public Works Projects Act.
 
    Section 5. Definitions. As used in this Act:
    "Accident" means an incident caused, contributed to, or
otherwise involving an employee that resulted in death,
personal injury, or property damage and that occurred while the
employee was performing work on a public works project.
    "Alcohol" means any substance containing any form of
alcohol including, but not limited to, ethanol, methanol,
propanol, and isopropanol.
    "Alcohol concentration" means: (1) the number of grams of
alcohol per 210 liters of breath; or (2) the number of grams of
alcohol per 100 milliliters of blood.
    "Drug" means a controlled substance as defined in the
Illinois Controlled Substances Act or cannabis as defined in
the Cannabis Control Act for which testing is required by an
employer under its substance abuse prevention program under
this Act. The term "drug" includes prescribed medications not
used in accordance with a valid prescription.
    "Employee" means a laborer, mechanic, or other worker
employed in any public works by anyone under a contract for
public works.
    "Employer" means a contractor or subcontractor performing
a public works project.
    "Public works" and "public body" have the meanings ascribed
to those terms in the Prevailing Wage Act.
 
    Section 10. Substance abuse prohibited. No employee may
use, possess, distribute, deliver, or be under the influence of
a drug, or use or be under the influence of alcohol, while
performing work on a public works project. An employee is
considered to be under the influence of alcohol for purposes of
this Act if the alcohol concentration in his or her blood or
breath at the time alleged as shown by analysis of the
employee's blood or breath is at or above 0.02.
 
    Section 15. Substance abuse prevention programs required.
        (1) Before an employer commences work on a public works
    project, the employer shall have in place a written program
    which meets or exceeds the program requirements in this
    Act, to be filed with the public body engaged in the
    construction of the public works and made available to the
    general public, for the prevention of substance abuse among
    its employees. The testing must be performed by a
    laboratory that is certified for Federal Workplace Drug
    Testing Programs by the Substance Abuse and Mental Health
    Service Administration of the U.S. Department of Health and
    Human Services. At a minimum, the program shall include all
    of the following:
            (A) A minimum requirement of a 9 panel urine drug
        test plus a test for alcohol. Testing an employee's
        blood may only be used for post-accident testing,
        however, blood testing is not mandatory for the
        employer where a urine test is sufficient.
            (B) A prohibition against the actions or
        conditions specified in Section 10.
            (C) A requirement that employees performing the
        work on a public works project submit to pre-hire,
        random, reasonable suspicion, and post-accident drug
        and alcohol testing. Testing of an employee before
        commencing work on a public works project is not
        required if the employee has been participating in a
        random testing program during the 90 days preceding the
        date on which the employee commenced work on the public
        works project.
            (D) A procedure for notifying an employee who
        violates Section 10, who tests positive for the
        presence of a drug in his or her system, or who refuses
        to submit to drug or alcohol testing as required under
        the program that the employee may not perform work on a
        public works project until the employee meets the
        conditions specified in subdivisions (2)(A) and (2)(B)
        of Section 20.
        (2) Reasonable suspicion testing. An employee whose
    supervisor has reasonable suspicion to believe the
    employee is under the influence of alcohol or a drug is
    subject to discipline up to and including suspension, and
    be required to undergo an alcohol or drug test. "Reasonable
    suspicion" means a belief, based on behavioral
    observations or other evidence, sufficient to lead a
    prudent or reasonable person to suspect an employee is
    under the influence and exhibits slurred speech, erratic
    behavior, decreased motor skills, or other such traits.
    Circumstances, both physical and psychological, shall be
    given consideration. Whenever possible before an employee
    is required to submit to testing based on reasonable
    suspicion, the employee shall be observed by more than one
    supervisory or managerial employee. It is encouraged that
    observation of an employee should be performed by a
    supervisory or managerial employee who has successfully
    completed a certified training program to recognize drug
    and alcohol abuse. The employer who is requiring an
    employee to be tested based upon reasonable suspicion shall
    provide transportation for the employee to the testing
    facility and may send a representative to accompany the
    employee to the testing facility. Under no circumstances
    may an employee thought to be under the influence of
    alcohol or a drug be allowed to operate a vehicle or other
    equipment for any purpose. The employee shall be removed
    from the job site and placed on inactive status pending the
    employer's receipt of notice of the test results. The
    employee shall have the right to request a representative
    or designee to be present at the time he or she is directed
    to provide a specimen for testing based upon reasonable
    suspicion. If the test result is positive for drugs or
    alcohol, the employee shall be subject to termination. The
    employer shall pay all costs related to this testing. If
    the test result is negative, the employee shall be placed
    on active status and shall be put back to work by the
    employer. The employee shall be paid for all lost time to
    include all time needed to complete the drug or alcohol
    test and any and all overtime according to the employee's
    contract.
        (3) An employer is responsible for the cost of
    developing, implementing, and enforcing its substance
    abuse prevention program, including the cost of drug and
    alcohol testing of its employees under the program, except
    when these costs are covered under provisions in a
    collective bargaining agreement. The testing must be
    performed by a laboratory that is certified for Federal
    Workplace Drug Testing Programs by the Substance Abuse and
    Mental Health Service Administration of the U.S.
    Department of Health and Human Services. The contracting
    agency is not responsible for that cost, for the cost of
    any medical review of a test result, or for any
    rehabilitation provided to an employee.
 
    Section 20. Employee access to project.
        (1) An employer may not permit an employee who violates
    Section 10, who tests positive for the presence of a drug
    in his or her system, or who refuses to submit to drug or
    alcohol testing as required under the employer's substance
    abuse prevention program under Section 15 to perform work
    on a public works project until the employee meets the
    conditions specified in subdivisions (2)(A) and (2)(B). An
    employer shall immediately remove an employee from work on
    a public works project if any of the following occurs:
            (A) The employee violates Section 10, tests
        positive for the presence of a drug in his or her
        system, or refuses to submit to drug or alcohol testing
        as required under the employer's substance abuse
        prevention program.
            (B) An officer or employee of the contracting
        agency, preferably one trained to recognize drug and
        alcohol abuse, has a reasonable suspicion that the
        employee is in violation of Section 10 and requests the
        employer to immediately remove the employee from work
        on the public works project for reasonable suspicion
        testing.
        (2) An employee who is barred or removed from work on a
    public works project under subsection (1) may commence or
    return to work on the public works project upon his or her
    employer providing to the contracting agency documentation
    showing all of the following:
            (A) That the employee has tested negative for the
        presence of drugs in his or her system and is not under
        the influence of alcohol as described in Section 10.
            (B) That the employee has been approved to commence
        or return to work on the public works project in
        accordance with the employer's substance abuse
        prevention program.
            (C) Testing for the presence of drugs or alcohol in
        an employee's system and the handling of test specimens
        was conducted in accordance with guidelines for
        laboratory testing procedures and chain-of-custody
        procedures established by the Substance Abuse and
        Mental Health Service Administration of the U.S.
        Department of Health and Human Services.
        (3) Upon successfully completing a rehabilitation
    program, an employee shall be reinstated to his or her
    former employment status if work for which he or she is
    qualified exists.
 
    Section 25. Applicability. This Act applies to a contract
to perform work on a public works project for which bids are
opened on or after January 1, 2008, or, if bids are not
solicited for the contract, to a contract to perform such work
entered into on or after January 1, 2008. The provisions of
this Act apply only to the extent there is no collective
bargaining agreement in effect dealing with the subject matter
of this Act.
 
    Section 99. Effective date. This Act takes effect January
1, 2008.