State of Illinois
90th General Assembly

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      New Act
      215 ILCS 5/456.1 new
          Creates the Drug-Free Workplace Program  Act  and  amends
      the  Insurance  Code.     Authorizes  employers  to implement
      drug-free workplace programs  in  accordance  with  specified
      requirements pertaining to drug testing, notice to employees,
      specimen  collection,  confidentiality,  and  other  matters.
      Provides   that   an  employer  who  implements  a  drug-free
      workplace program is eligible for a 5% discount  in  workers'
      compensation insurance premiums and may terminate an employee
      who  has  drugs  or  alcohol  in  his  or her system and deny
      specified   benefits   to   the   employee.    Provides   for
      administration of  the  Act.   Contains  separate  provisions
      applicable to public employers and employees.
 1        AN ACT in relation to drug-free workplace programs.
 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:
 4        Section 1. Short title.  This Act may  be  cited  as  the
 5    Drug-Free Workplace Program Act.
 6        Section   5.   Legislative  intent;  drug-free  workplace
 7    programs.
 8        (1) It is the intent of the General Assembly  to  promote
 9    drug-free  workplaces so employers in this State are afforded
10    the opportunity to maximize  their  levels  of  productivity,
11    enhance  their  competitive positions in the marketplace, and
12    reach their desired levels of  success  without  experiencing
13    the costs, delays, and tragedies associated with work-related
14    accidents  or  incidents  resulting from drug use and alcohol
15    abuse by employees. It is further the intent of  the  General
16    Assembly  that  drug  abuse  should  be  discouraged and that
17    employees who choose to engage in drug abuse should face  the
18    risk   of   unemployment   and  the  forfeiture  of  workers'
19    compensation benefits.
20        (2) If  an  employer  implements  a  drug-free  workplace
21    program  in accordance with Section 10 which includes notice,
22    education, and procedural requirements for testing for  drugs
23    and alcohol pursuant to rules adopted in accordance with this
24    Act,  the  employer  may  require the employee to submit to a
25    test for the presence of drugs or alcohol and, if a  drug  or
26    alcohol  is found to be present in the employee's system at a
27    level prescribed by rules adopted pursuant to this  Act,  the
28    employee   may   be   terminated  and  forfeits  his  or  her
29    eligibility for medical and indemnity  benefits.  However,  a
30    drug-free  workplace  program  must  require  the employer to
31    notify all employees that it is a condition of employment for
                            -2-               LRB9002452WHmgB
 1    an employee to refrain from reporting to work or working with
 2    the presence of drugs or alcohol in his or her body  and,  if
 3    an  injured employee refuses to submit to a test for drugs or
 4    alcohol, the employee forfeits eligibility  for  medical  and
 5    indemnity benefits.
 6        Section  10.    Drug-free workplace program requirements.
 7    The following  provisions  apply  to  a  drug-free  workplace
 8    program  implemented  pursuant to rules adopted in accordance
 9    with this Act:
10        (1)  Definitions.  Except  where  the  context  otherwise
11    requires, as used in this Act:
12             (a) "Chain of custody" refers to the methodology  of
13        tracking   specified  materials  or  substances  for  the
14        purpose of maintaining control  and  accountability  from
15        initial  collection  to  final  disposition  for all such
16        materials or substances and providing for  accountability
17        at each stage in handling, testing, and storing specimens
18        and reporting test results.
19             (b)   "Confirmation   test",  "confirmed  test",  or
20        "confirmed drug test" means a second analytical procedure
21        used to identify the  presence  of  a  specific  drug  or
22        metabolite in a specimen, which test must be different in
23        scientific  principle  from  that  of  the  initial  test
24        procedure  and  must  be  capable  of providing requisite
25        specificity, sensitivity, and quantitative accuracy.
26             (c) "Drug"  means  alcohol,  including  a  distilled
27        spirit, wine, a malt beverage, or an intoxicating liquor;
28        an  amphetamine;  a  cannabinoid;  cocaine; phencyclidine
29        (PCP);  a  hallucinogen;  methaqualone;  an   opiate;   a
30        barbiturate;  a  benzodiazepine;  a synthetic narcotic; a
31        designer drug; or a metabolite of any of  the  substances
32        listed  in  this subdivision (c). An employer may test an
33        individual for any or all of those drugs.
                            -3-               LRB9002452WHmgB
 1             (d) "Drug rehabilitation program"  means  a  service
 2        provider  licensed  under  the  Alcoholism and Other Drug
 3        Abuse and  Dependency  Act  that  provides  confidential,
 4        timely,   and   expert  identification,  assessment,  and
 5        resolution of employee drug abuse.
 6             (e)  "Drug  test"  or  "test"  means  any  chemical,
 7        biological,    or    physical    instrumental    analysis
 8        administered, by an approved laboratory as  described  in
 9        subsection  (9),  for  the  purpose  of  determining  the
10        presence or absence of a drug or its metabolites.
11             (f)  "Employee"  means  any  person  who  works  for
12        salary, wages, or other remuneration for an employer.
13             (g)   "Employee   assistance   program"   means   an
14        established   program   capable   of   providing   expert
15        assessment  of  employee  personal concerns; confidential
16        and  timely  identification  services  with   regard   to
17        employee   drug   abuse;   referrals   of  employees  for
18        appropriate diagnosis,  treatment,  and  assistance;  and
19        followup  services  for  employees who participate in the
20        program or require monitoring after  returning  to  work.
21        If,  in  addition  to  the  above activities, an employee
22        assistance  program  provides  diagnostic  and  treatment
23        services, these services shall in all cases  be  provided
24        by  service providers meeting all applicable requirements
25        of the Alcoholism and Other  Drug  Abuse  and  Dependency
26        Act.
27             (h) "Employer" means a person or entity that employs
28        a person and that is covered by the Workers' Compensation
29        Act.
30             (i)  "Initial  drug  test" means a sensitive, rapid,
31        and  reliable  procedure   to   identify   negative   and
32        presumptive  positive  specimens,  using  an  immunoassay
33        procedure   or   an   equivalent,   or  a  more  accurate
34        scientifically accepted method  approved  by  the  United
                            -4-               LRB9002452WHmgB
 1        States  Food and Drug Administration or the Department of
 2        Public  Health  as   more  accurate  technology   becomes
 3        available in a cost-effective form.
 4             (j)  "Job  applicant" means a person who has applied
 5        for a position with an  employer  and  has  been  offered
 6        employment  conditioned  upon successfully passing a drug
 7        test, and may have begun work pending the results of  the
 8        drug  test.  For a public employer, "job applicant" means
 9        only a person who  has  applied  for  a  special-risk  or
10        safety-sensitive position.
11             (k)  "Medical  review  officer"   means  a  licensed
12        physician,  employed with or contracted with an employer,
13        who  has  knowledge   of   substance   abuse   disorders,
14        laboratory  testing  procedures,  and  chain  of  custody
15        collection  procedures;  who verifies positive, confirmed
16        test results; and who has the necessary medical  training
17        to  interpret  and  evaluate  an employee's positive test
18        result in relation to the employee's medical  history  or
19        any other relevant biomedical information.
20             (l)  "Prescription  or  nonprescription  medication"
21        means  a  drug  or  medication  obtained  pursuant  to  a
22        prescription  or a medication that is authorized pursuant
23        to federal or State law for general distribution and  use
24        without   a   prescription  in  the  treatment  of  human
25        diseases, ailments, or injuries.
26             (m) "Public employer" means any agency within  State
27        government  or  a  unit  of local government that employs
28        individuals for a salary, wages, or other remuneration.
29             (n) "Reasonable-suspicion drug testing"  means  drug
30        testing  based  on  a belief that an employee is using or
31        has used drugs in  violation  of  the  employer's  policy
32        drawn  from  specific objective and articulable facts and
33        reasonable inferences drawn from those facts in light  of
34        experience. Among other things, such facts and inferences
                            -5-               LRB9002452WHmgB
 1        may be based upon:
 2                  (i) Observable phenomena while at work, such as
 3             direct  observation  of  drug use or of the physical
 4             symptoms  or  manifestations  of  being  under   the
 5             influence of a drug.
 6                  (ii) Abnormal conduct or erratic behavior while
 7             at  work  or  a  significant  deterioration  in work
 8             performance.
 9                  (iii) A report  of  drug  use,  provided  by  a
10             reliable and credible source.
11                  (iv)  Evidence  that an individual has tampered
12             with a drug test  during  his  employment  with  the
13             current employer.
14                  (v)  Information  that  an employee has caused,
15             contributed to, or  been  involved  in  an  accident
16             while at work.
17                  (vi)   Evidence  that  an  employee  has  used,
18             possessed, sold,  solicited,  or  transferred  drugs
19             while working or while on the employer's premises or
20             while  operating  the employer's vehicle, machinery,
21             or equipment.
22             (o) "Safety-sensitive position" means, with  respect
23        to  a  public  employer,  a  position  in  which  a  drug
24        impairment  constitutes an immediate and direct threat to
25        public health or safety, such as a position that requires
26        the employee to carry a firearm, perform life-threatening
27        procedures,  work  with   confidential   information   or
28        documents  pertaining to criminal investigations, or work
29        with controlled substances; or  a  position  in  which  a
30        momentary  lapse  in  attention could result in injury or
31        death to another person.
32             (p) "Special-risk position" means, with respect to a
33        public employer, a  position  meeting  the  criteria  set
34        forth  in  subdivision  (g-1)  or (k) of Section 2 of the
                            -6-               LRB9002452WHmgB
 1        Illinois Public Labor Relations Act.
 2             (q) "Specimen" means tissue, hair, or a  product  of
 3        the human body capable of revealing the presence of drugs
 4        or  their  metabolites,  as approved by the United States
 5        Food and Drug Administration or the Department of  Public
 6        Health.
 7        (2) Drug testing. An employer may test an employee or job
 8    applicant  for  any  drug described in subdivision (1)(c). In
 9    order to qualify as having established a drug-free  workplace
10    program  which affords an employer the ability to qualify for
11    the discounts provided under Section 456.1 of  the  Insurance
12    Code  and  deny  medical  and  indemnity  benefits under this
13    Section, all drug testing conducted by employers shall be  in
14    conformity  with  the standards and procedures established in
15    this Section and all applicable  rules  adopted  pursuant  to
16    this Section. However, an employer does not have a legal duty
17    under this Section to request an employee or job applicant to
18    undergo  drug  testing.  If  an  employer fails to maintain a
19    drug-free workplace program in accordance with the  standards
20    and  procedures established in this Section and in applicable
21    rules, the employer shall not be eligible for discounts under
22    Section 456.1 of the Insurance Code. All employers qualifying
23    for and receiving discounts provided under Section  456.1  of
24    the  Insurance  Code must be reported annually by the insurer
25    to the Director of Insurance.
26        (3) Notice to employees and job applicants.
27             (a) One time only, prior  to  testing,  an  employer
28        shall   give   all   employees  and  job  applicants  for
29        employment a written policy statement which contains:
30                  (i)  A  general  statement  of  the  employer's
31             policy on employee drug use, which must identify:
32                       (A) The types of drug testing an  employee
33                  or  job applicant may be required to submit to,
34                  including reasonable-suspicion drug testing  or
                            -7-               LRB9002452WHmgB
 1                  drug testing conducted on any other basis.
 2                       (B)  The  actions  the  employer  may take
 3                  against an employee or  job  applicant  on  the
 4                  basis of a positive confirmed drug test result.
 5                  (ii)  A  statement advising the employee or job
 6             applicant of the existence of this Section.
 7                  (iii)   A    general    statement    concerning
 8             confidentiality.
 9                  (iv)   Procedures   for   employees   and   job
10             applicants  to  confidentially  report  to a medical
11             review  officer   the   use   of   prescription   or
12             nonprescription  medications  to  a  medical  review
13             officer both before and after being tested.
14                  (v)  A  list of the most common medications, by
15             brand name or common name, as applicable, as well as
16             by chemical name, which may alter or affect  a  drug
17             test. A list of such medications as developed by the
18             Department  of  Public  Health shall be available to
19             employers through the Industrial Commission.
20                  (vi) The consequences of refusing to submit  to
21             a drug test.
22                  (vii)   A  representative  sampling  of  names,
23             addresses,  and  telephone   numbers   of   employee
24             assistance  programs  and  local drug rehabilitation
25             programs.
26                  (viii) A statement  that  an  employee  or  job
27             applicant  who  receives  a  positive confirmed test
28             result may contest or  explain  the  result  to  the
29             medical  review  officer within 5 working days after
30             receiving written notification of the  test  result;
31             that if an employee's or job applicant's explanation
32             or challenge is unsatisfactory to the medical review
33             officer,  the  medical review officer shall report a
34             positive test result back to the employer; and  that
                            -8-               LRB9002452WHmgB
 1             a  person  may contest the drug test result pursuant
 2             to rules adopted by the Industrial Commission.
 3                  (ix) A statement informing the employee or  job
 4             applicant   of  his  responsibility  to  notify  the
 5             laboratory of any  administrative  or  civil  action
 6             brought pursuant to this Section.
 7                  (x)  A list of all drugs for which the employer
 8             will test, described by brand name or  common  name,
 9             as applicable, as well as by chemical name.
10                  (xi)   A  statement  regarding  any  applicable
11             collective bargaining agreement or contract and  the
12             right  to  appeal  to the appropriate administrative
13             body or court.
14                  (xii) A statement notifying employees  and  job
15             applicants  of their right to consult with a medical
16             review officer for technical  information  regarding
17             prescription or nonprescription medication.
18             (b)  An  employer  not having a drug-testing program
19        shall ensure that at  least  60  days  elapse  between  a
20        general   one-time   notice   to  all  employees  that  a
21        drug-testing  program  is  being  implemented   and   the
22        beginning  of  actual  drug testing. An employer having a
23        drug-testing program in place prior to the effective date
24        of this Act is not required to provide  a  60-day  notice
25        period.
26             (c) An employer shall include notice of drug testing
27        on  vacancy  announcements  for  positions for which drug
28        testing  is  required.  A  notice   of   the   employer's
29        drug-testing policy must also be posted in an appropriate
30        and  conspicuous location on the employer's premises, and
31        copies  of  the  policy  must  be  made   available   for
32        inspection  by  the  employees  or  job applicants of the
33        employer during regular business hours in the  employer's
34        personnel office or other suitable locations.
                            -9-               LRB9002452WHmgB
 1        (4) Types of testing.
 2             (a) An employer is required to conduct the following
 3        types of drug tests:
 4                  (i)  Job  applicant  drug  testing. An employer
 5             must require job applicants to submit to a drug test
 6             and may use a refusal to submit to a drug test or  a
 7             positive confirmed drug test as a basis for refusing
 8             to hire a job applicant.
 9                  (ii)   Reasonable-suspicion  drug  testing.  An
10             employer must  require  an  employee  to  submit  to
11             reasonable-suspicion drug testing.
12                  (iii) Routine fitness-for-duty drug testing. An
13             employer  must  require  an  employee to submit to a
14             drug test if the test is  conducted  as  part  of  a
15             routinely    scheduled   employee   fitness-for-duty
16             medical examination that is part of  the  employer's
17             established  policy  or  that is scheduled routinely
18             for all members of an employment  classification  or
19             group.
20                  (iv)  Followup drug testing. If the employee in
21             the  course  of  employment   enters   an   employee
22             assistance  program  for drug-related problems, or a
23             drug  rehabilitation  program,  the  employer   must
24             require  the  employee to submit to a drug test as a
25             followup  to  such  program,  unless  the   employee
26             voluntarily entered the program. In those cases, the
27             employer  has  the  option  to  not require followup
28             testing. If followup testing is required, it must be
29             conducted at least once a year for a  2-year  period
30             after completion of the program. Advance notice of a
31             followup  testing  date  must  not  be  given to the
32             employee to be tested.
33             (b) This subsection (4) does not preclude a  private
34        employer  from  conducting  random  testing, or any other
                            -10-              LRB9002452WHmgB
 1        lawful testing, of employees for drugs.
 2             (c) Limited testing of applicants,  only  if  it  is
 3        based   on   a   reasonable   classification   basis,  is
 4        permissible in accordance with rule.
 5        (5) Procedures  and  employee  protection.  All  specimen
 6    collection  and testing for drugs under this Section shall be
 7    performed in accordance with the following procedures:
 8             (a) A sample shall be collected with due  regard  to
 9        the  privacy  of the individual providing the sample, and
10        in a manner reasonably calculated to prevent substitution
11        or contamination of the sample.
12             (b) Specimen collection must be documented, and  the
13        documentation procedures shall include:
14                  (i)  Labeling  of  specimen containers so as to
15             reasonably  preclude  the  likelihood  of  erroneous
16             identification of test results.
17                  (ii) A form for the employee or  job  applicant
18             to  provide any information he considers relevant to
19             the test, including identification of  currently  or
20             recently   used   prescription   or  nonprescription
21             medication or other  relevant  medical  information.
22             The  form  must  provide  notice  of the most common
23             medications  by  brand  name  or  common  name,   as
24             applicable,  as  well as by chemical name, which may
25             alter or  affect  a  drug  test.  The  providing  of
26             information shall not preclude the administration of
27             the  drug  test,  but shall be taken into account in
28             interpreting any positive confirmed test result.
29             (c) Specimen collection, storage, and transportation
30        to the testing site shall be performed in a  manner  that
31        reasonably  precludes  contamination  or  adulteration of
32        specimens.
33             (d) Each initial drug  test  and  confirmation  test
34        conducted under this Section, not including the taking or
                            -11-              LRB9002452WHmgB
 1        collecting of a specimen to be tested, shall be conducted
 2        by an approved laboratory as described in subsection (9).
 3             (e)  A  specimen  for  a  drug  test may be taken or
 4        collected by any of the following persons:
 5                  (i)  A  physician,  a  physician  assistant,  a
 6             registered professional nurse, a licensed  practical
 7             nurse,  or  a  certified paramedic who is present at
 8             the  scene  of  an  accident  for  the  purpose   of
 9             rendering emergency medical service or treatment.
10                  (ii) A qualified person employed by an approved
11             laboratory as described in subsection (9).
12             (f)  A person who collects or takes a specimen for a
13        drug test shall collect an amount sufficient for  2  drug
14        tests as determined by the Department of Public Health.
15             (g)   Every   specimen  that  produces  a  positive,
16        confirmed  test  result  shall  be   preserved   by   the
17        laboratory  that  conducted  the  confirmation test for a
18        period of at least 210 days after the result of the  test
19        was  mailed  or otherwise delivered to the medical review
20        officer.  However,  if  an  employee  or  job   applicant
21        undertakes  an  administrative  or legal challenge to the
22        test result, the employee or job applicant  shall  notify
23        the  laboratory  and  the sample shall be retained by the
24        laboratory until the case  or  administrative  appeal  is
25        settled.   During   the   180-day  period  after  written
26        notification of a positive test result, the  employee  or
27        job  applicant  who  has  provided  the specimen shall be
28        permitted by the  employer  to  have  a  portion  of  the
29        specimen  retested,  at the employee's or job applicant's
30        expense, at another laboratory, meeting the  criteria  of
31        subsection  (9), chosen by the employee or job applicant.
32        The second laboratory  must  test  at  equal  or  greater
33        sensitivity  for  the  drug  in  question  as  the  first
34        laboratory.  The first laboratory that performed the test
                            -12-              LRB9002452WHmgB
 1        for the employer is responsible for the transfer  of  the
 2        portion  of  the  specimen  to  be  retested, and for the
 3        integrity of the chain of custody during the transfer.
 4             (h)  Within  5  working  days  after  receipt  of  a
 5        positive confirmed test result from  the  medical  review
 6        officer,  an  employer  shall  inform  an employee or job
 7        applicant in writing of such positive  test  result,  the
 8        consequences  of  such results, and the options available
 9        to the employee or  job  applicant.  The  employer  shall
10        provide to the employee or job applicant, upon request, a
11        copy of the test results.
12             (i)  Within 5 working days after receiving notice of
13        a positive confirmed test  result,  an  employee  or  job
14        applicant   may   submit   information  to  the  employer
15        explaining or contesting the test result, and  explaining
16        why  the  result  does  not constitute a violation of the
17        employer's policy.
18             (j) The employee's or job applicant's explanation or
19        challenge of the positive test result  is  unsatisfactory
20        to  the  employer,  a  written  explanation as to why the
21        employee's   or   job    applicant's    explanation    is
22        unsatisfactory, along with the report of positive result,
23        shall  be provided by the employer to the employee or job
24        applicant; and  all  such  documentation  shall  be  kept
25        confidential  by  the employer pursuant to subsection (8)
26        and shall be retained by the employer for  at  least  one
27        year.
28             (k)  An  employer  may  not  discharge,  discipline,
29        refuse  to  hire,  discriminate  against,  or  request or
30        require rehabilitation of an employee or job applicant on
31        the sole basis of a positive test  result  that  has  not
32        been  verified  by  a  confirmation test and by a medical
33        review officer.
34             (l)  An  employer  that  performs  drug  testing  or
                            -13-              LRB9002452WHmgB
 1        specimen collection shall use chain-of-custody procedures
 2        established by the Department of Public Health to  ensure
 3        proper    recordkeeping,    handling,    labeling,    and
 4        identification of all specimens tested.
 5             (m)  An  employer  shall  pay  the  cost of all drug
 6        tests,  initial  and  confirmation,  which  the  employer
 7        requires of employees. An employee or job applicant shall
 8        pay the costs of any additional drug tests  not  required
 9        by the employer.
10             (n)  An employer shall not discharge, discipline, or
11        discriminate  against  an  employee   solely   upon   the
12        employee's voluntarily seeking treatment, while under the
13        employ of the employer, for a drug-related problem if the
14        employee has not previously tested positive for drug use,
15        entered  an  employee assistance program for drug-related
16        problems,  or  entered  a  drug  rehabilitation  program.
17        Unless otherwise  provided  by  a  collective  bargaining
18        agreement, an employer may select the employee assistance
19        program  or  drug  rehabilitation program if the employer
20        pays the cost of  the  employee's  participation  in  the
21        program.
22             (o) If drug testing is conducted based on reasonable
23        suspicion,  the employer shall promptly detail in writing
24        the  circumstances  which  formed  the   basis   of   the
25        determination   that   reasonable  suspicion  existed  to
26        warrant the testing. A copy of this  documentation  shall
27        be  given  to  the employee upon request and the original
28        documentation shall be kept confidential by the  employer
29        pursuant  to  subsection (8) and shall be retained by the
30        employer for at least one year.
31             (p) All authorized  remedial  treatment,  care,  and
32        attendance  provided  by  a  health  care  provider to an
33        injured employee before medical  and  indemnity  benefits
34        are  denied  under  this  Section must be paid for by the
                            -14-              LRB9002452WHmgB
 1        carrier  or  self-insurer.     However,  the  carrier  or
 2        self-insurer must have given  reasonable  notice  to  all
 3        affected   health   care   providers   that  payment  for
 4        treatment, care, and attendance provided to the  employee
 5        after a future date certain will be denied. A health care
 6        provider  that  refuses,  without good cause, to continue
 7        treatment,  care,  and  attendance  before  the  provider
 8        receives notice of  benefit  denial  commits  a  Class  B
 9        misdemeanor.
10        (6) Confirmation testing.
11             (a)  If  an  initial  drug  test  is  negative,  the
12        employer  may  in its sole discretion seek a confirmation
13        test.
14             (b)  Only  approved  laboratories  as  described  in
15        subsection (9) may conduct confirmation drug tests.
16             (c) All positive initial tests  shall  be  confirmed
17        using  gas chromatography mass spectrometry (GC/MS) or an
18        equivalent  or  more  accurate  scientifically   accepted
19        method approved by the Department of Public Health or the
20        United  States  Food  and  Drug  Administration  as  such
21        technology becomes available in a cost-effective form.
22             (d)  If  an  initial drug test of an employee or job
23        applicant  is  confirmed  as  positive,  the   employer's
24        medical review officer shall provide technical assistance
25        to  the employer and to the employee or job applicant for
26        the purpose of interpreting the test result to  determine
27        whether the result could have been caused by prescription
28        or  nonprescription  medication  taken by the employee or
29        job applicant.
30        (7) Employer protection.
31             (a) An employee or job  applicant  whose  drug  test
32        result  is  confirmed as positive in accordance with this
33        Section shall not, by virtue  of  the  result  alone,  be
34        deemed  to  have  a "handicap" or "disability" as defined
                            -15-              LRB9002452WHmgB
 1        under federal, State, or local  handicap  and  disability
 2        discrimination laws.
 3             (b)  An  employer  who  discharges or disciplines an
 4        employee or refuses to hire a job applicant in compliance
 5        with this  Section  is  considered  to  have  discharged,
 6        disciplined, or refused to hire for cause.
 7             (c)  No  physician-patient  relationship  is created
 8        between an employee or job applicant and an  employer  or
 9        any  person  performing or evaluating a drug test, solely
10        by the establishment, implementation,  or  administration
11        of a drug-testing program.
12             (d)  Nothing  in  this Section shall be construed to
13        prevent an employer  from  establishing  reasonable  work
14        rules  related  to  employee  possession,  use,  sale, or
15        solicitation  of   drugs,   including   convictions   for
16        drug-related  offenses,  and  taking  action based upon a
17        violation of any of those rules.
18             (e) This Section does not operate retroactively, and
19        does not abrogate the right of an  employer  under  State
20        law   to   conduct  drug  tests,  or  implement  employee
21        drug-testing programs; however, only those programs  that
22        meet  the  criteria  outlined in this Section qualify for
23        reduced rates under Section 456.1 of the Insurance  Code.
24        Nothing  in  this Act abrogates any provision of the Drug
25        Free Workplace Act.
26             (f) If an  employee  or  job  applicant  refuses  to
27        submit  to  a  drug test, the employer is not barred from
28        discharging or disciplining the employee or from refusing
29        to hire the job applicant.  However, this subdivision (f)
30        does not abrogate the rights and remedies of the employee
31        or job applicant as otherwise provided in this Section.
32             (g) This Section does not prohibit an employer  from
33        conducting  medical  screening  or  other tests required,
34        permitted, or not disallowed by  any  statute,  rule,  or
                            -16-              LRB9002452WHmgB
 1        regulation  for  the  purpose  of  monitoring exposure of
 2        employees to toxic or other unhealthy substances  in  the
 3        workplace  or in the performance of job responsibilities.
 4        Such screening or testing  is  limited  to  the  specific
 5        substances   expressly   identified   in  the  applicable
 6        statute,  rule,  or  regulation,  unless  prior   written
 7        consent  of  the  employee is obtained for other tests. A
 8        public employer may,  through  the  use  of  an  unbiased
 9        selection   procedure,   conduct  random  drug  tests  of
10        employees  occupying  safety-sensitive  or   special-risk
11        positions  if the testing is performed in accordance with
12        drug-testing rules adopted by the  Department  of  Public
13        Health  and  the  Industrial  Commission.  If applicable,
14        random drug testing must be  specified  in  a  collective
15        bargaining  agreement  as  negotiated  by the appropriate
16        certified  bargaining  agent  before  such   testing   is
17        implemented.
18             (h)  No  cause of action shall arise in favor of any
19        person based upon the failure of an employer to establish
20        a program or policy for drug testing.
21        (8) Confidentiality.
22             (a) Except as otherwise provided in this subsection,
23        all   information,   interviews,   reports,   statements,
24        memoranda, and drug test results, written  or  otherwise,
25        received  or  produced  as  a  result  of  a drug-testing
26        program are confidential and may not be used or  received
27        in  evidence,  obtained in discovery, or disclosed in any
28        public or private proceedings, except in accordance  with
29        this Section or in determinations related to this Act.
30             (b)    Employers,   laboratories,   medical   review
31        officers,    employee    assistance    programs,     drug
32        rehabilitation programs, and their agents may not release
33        any  information  concerning  drug  test results obtained
34        pursuant to this Section without a written  consent  form
                            -17-              LRB9002452WHmgB
 1        signed  voluntarily  by  the  person  tested,  unless the
 2        release is compelled by a hearing officer or a  court  of
 3        competent  jurisdiction pursuant to an appeal taken under
 4        this Section or is deemed appropriate by  a  professional
 5        or occupational licensing board in a related disciplinary
 6        proceeding. The consent form must contain, at a minimum:
 7                  (i) The name of the person who is authorized to
 8             obtain the information.
 9                  (ii) The purpose of the disclosure.
10                  (iii) The precise information to be disclosed.
11                  (iv) The duration of the consent.
12                  (v)  The  signature  of  the person authorizing
13             release of the information.
14             (c) Information on drug test results  shall  not  be
15        used  in  any criminal proceeding against the employee or
16        job applicant.  Information  released  contrary  to  this
17        Section  is inadmissible as evidence in any such criminal
18        proceeding.
19             (d)  This  subsection  (8)  does  not  prohibit   an
20        employer,  agent of an employer, or laboratory conducting
21        a drug test from having  access  to  employee  drug  test
22        information  or  using  such  information when consulting
23        with legal counsel in  connection  with  actions  brought
24        under  or related to this Section or when the information
25        is relevant to its defense in a civil  or  administrative
26        matter.
27        (9) Drug-testing standards for laboratories.
28             (a)   A   laboratory  may  not  analyze  initial  or
29        confirmation test specimens unless:
30                  (i)  The  laboratory   is   approved   by   the
31             Department   of   Public   Health   using   criteria
32             established  by  the  United  States  Department  of
33             Health and Human Services as guidelines for modeling
34             the  State  drug-testing  program  pursuant  to this
                            -18-              LRB9002452WHmgB
 1             Section or the laboratory is certified by the United
 2             States Department of Health and Human Services.
 3                  (ii) The laboratory has written  procedures  to
 4             ensure the chain of custody.
 5                  (iii)  The  laboratory  follows  proper quality
 6             control procedures, including, but not limited to:
 7                       (A) The use of internal quality  controls,
 8                  including   the   use   of   samples  of  known
 9                  concentrations which  are  used  to  check  the
10                  performance    and   calibration   of   testing
11                  equipment, and periodic use  of  blind  samples
12                  for overall accuracy.
13                       (B)  An  internal review and certification
14                  process for drug test results, conducted  by  a
15                  person  qualified  to  perform that function in
16                  the testing laboratory.
17                       (C) Security measures implemented  by  the
18                  testing  laboratory to preclude adulteration of
19                  specimens and drug test results.
20                       (D) Other  necessary  and  proper  actions
21                  taken to ensure reliable and accurate drug test
22                  results.
23             (b)  A  laboratory  shall  disclose  to  the medical
24        review officer a written positive confirmed  test  result
25        report within 7 working days after receipt of the sample.
26        All  laboratory  reports of a drug test result must, at a
27        minimum, state:
28                  (i) The name and address of the laboratory that
29             performed the test and the  positive  identification
30             of the person tested.
31                  (ii)  Positive  results  on  confirmation tests
32             only, or negative results, as applicable.
33                  (iii) A list of the drugs for  which  the  drug
34             analyses were conducted.
                            -19-              LRB9002452WHmgB
 1                  (iv)  The  type  of  tests  conducted  for both
 2             initial tests and confirmation tests and the minimum
 3             cutoff levels of the tests.
 4                  (v) Any correlation between medication reported
 5             by  the  employee  or  job  applicant  pursuant   to
 6             subdivision (5)(b)(ii) and a positive confirmed drug
 7             test result.
 8             A  report  must not disclose the presence or absence
 9        of  any  drug  other  than  a  specific  drug   and   its
10        metabolites listed pursuant to this Section.
11             (c) The laboratory shall submit to the Department of
12        Public   Health   a   monthly   report  with  statistical
13        information regarding the testing of  employees  and  job
14        applicants.  The  report  must include information on the
15        methods of analysis conducted, the drugs tested for,  the
16        number  of positive and negative results for both initial
17        tests and confirmation tests, and any  other  information
18        deemed  appropriate by the Department of Public Health. A
19        monthly report must not identify  specific  employees  or
20        job applicants.
21        (10)  Rules.  The Department of Public Health shall adopt
22    rules,  using  criteria  established  by  the  United  States
23    Department of Health and Human  Services  as  guidelines  for
24    modeling  the State drug-testing program, concerning, but not
25    limited to:
26             (a) Standards for approved drug-testing laboratories
27        and suspension and revocation of such licenses.
28             (b) Body specimens and minimum specimen amounts that
29        are appropriate for drug testing.
30             (c) Methods of analysis  and  procedures  to  ensure
31        reliable  drug-testing  results,  including standards for
32        initial tests and confirmation tests.
33             (d) Minimum cutoff detection levels for each drug or
34        metabolites of such drug for the purposes of  determining
                            -20-              LRB9002452WHmgB
 1        a positive test result.
 2             (e)  Chain-of-custody  procedures  to  ensure proper
 3        identification,  labeling,  and  handling  of   specimens
 4        tested.
 5             (f)    Retention,    storage,   and   transportation
 6        procedures to ensure  reliable  results  on  confirmation
 7        tests and retests.
 8        (11) Public employees in safety-sensitive or special-risk
 9    positions.
10             (a)  If  an  employee  who  is  employed by a public
11        employer  in  a  safety-sensitive  position   enters   an
12        employee   assistance   program  or  drug  rehabilitation
13        program, the employer  must  assign  the  employee  to  a
14        position  other  than  a safety-sensitive position or, if
15        such position is not available,  place  the  employee  on
16        leave while the employee is participating in the program.
17        However,  the  employee  shall  be  permitted  to use any
18        accumulated annual leave  credits  before  leave  may  be
19        ordered without pay.
20             (b) An employee who is employed by a public employer
21        in   a   special-risk   position  may  be  discharged  or
22        disciplined by a public employer for the  first  positive
23        confirmed  test  result  if  the drug confirmed is a drug
24        scheduled  in  the  Illinois  Controlled  Substances  Act
25        unless  the  drug  was  taken  in   accordance   with   a
26        lawfully-issued  prescription.    A special-risk employee
27        who is participating in an employee assistance program or
28        drug  rehabilitation  program  may  not  be  allowed   to
29        continue  to work in any special-risk or safety-sensitive
30        position of the public employer, but may be assigned to a
31        position other than a safety-sensitive position or placed
32        on leave while  the  employee  is  participating  in  the
33        program.  However, the employee shall be permitted to use
34        any accumulated annual leave credits before leave may  be
                            -21-              LRB9002452WHmgB
 1        ordered without pay.
 2        (12)  Collective bargaining rights. This Section does not
 3    eliminate  the  bargainable  rights  as   provided   in   the
 4    collective bargaining process if applicable.
 5        Section  900.  The  Insurance  Code  is amended by adding
 6    Section 456.1 as follows:
 7        (215 ILCS 5/456.1 new)
 8        Sec.  456.1.  Workers'  compensation  insurance   premium
 9    discount for insured with drug-free workplace program.
10        (a)  Notwithstanding any other provision of this Article,
11    for  each policy of workers' compensation insurance issued or
12    renewed in this State on and after the effective date of this
13    amendatory Act of 1997, there shall be granted by the insurer
14    a 5% reduction in the premium for the policy if  the  insured
15    has  been  certified by the Industrial Commission as having a
16    drug-free  workplace  program   which   complies   with   the
17    requirements  of  the Drug-Free Workplace Program Act and has
18    notified its insurer in writing of that certification.
19        (b)  The premium discount provided by this Section  shall
20    be  applied  to  an insured's policy of workers' compensation
21    insurance pro rata  as  of  the  date  the  insured  receives
22    certification by the Industrial Commission and shall continue
23    for a period not to exceed 4 years; however, an insurer shall
24    not  be  required  to credit the actual amount of the premium
25    discount to the  account  of  the  insured  until  the  final
26    premium  audit under the policy.  Certification by an insured
27    shall be required for each of  the  4  years  in  which  such
28    premium   discount   is  granted.   Thereafter,  any  premium
29    discount pursuant to this Section shall be determined by  the
30    Director in an actuarially sound manner.
31        (c)  The  workers'  compensation  insurance  policy of an
32    insured shall be subject to an  additional  premium  for  the
                            -22-              LRB9002452WHmgB
 1    purposes  of  reimbursement  of  a previously granted premium
 2    discount  and  to  cancellation  in   accordance   with   the
 3    provisions   of  the  policy  if  it  is  determined  by  the
 4    Industrial Commission that  the  insured  misrepresented  the
 5    compliance  of  its  drug-free  workplace  program  with  the
 6    provisions of the Drug-Free Workplace Program Act.
 7        (d)  Each  insurer  shall  make  an  annual report to the
 8    Director pursuant to  this  Section  illustrating  the  total
 9    dollar  amount  of  drug-free  workplace  premium  credit and
10    providing any other information required by the Director.

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