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.