SECOND REGULAR SESSION
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES SMITH (118) (Sponsor), PORTWOOD, SATER, BIVINS, YATES, STEVENSON, McGHEE AND MOORE (Co-sponsors).
Read 1st time January 10, 2006 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To repeal section 288.045, RSMo, and to enact in lieu thereof two new sections relating to employee misconduct.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Section 288.045, RSMo, is repealed and two new sections enacted in lieu thereof, to be known as sections 288.045 and 288.047, to read as follows:
288.045. 1. If a claimant is at work with a detectible amount of alcohol or a controlled substance as defined in section 195.010, RSMo, in the claimant's system, in violation of the employer's alcohol and controlled substance workplace policy, the claimant shall have committed misconduct connected with the claimant's work.
2. [For carboxy-tetrahydrocannabinol, a chemical test result of fifty nannograms per milliliter or more shall be considered a detectible amount. For alcohol, a blood alcohol content of eight-hundredths of one percent or more by weight of alcohol in the claimant's blood shall be considered a detectible amount.
3.] If the test is conducted by a laboratory certified by the United States Department of [Transportation] Health and Human Services, or another accrediting organization, certifying organization, or professional society, and approved by the division, the laboratory's test results and the [laboratory's trial packet] medical review officer's report shall be included in the administrative record and considered as evidence.
[4.] 3. For this section to be applicable, the claimant must have previously been notified of the employer's alcohol and controlled substance workplace policy by conspicuously posting the policy in the workplace, by including the policy in a written personnel policy or handbook, or by statement of such policy in a collective bargaining agreement governing employment of the employee. The policy, public posting, collective bargaining agreement, or other written notice provided to the employee must state that a positive test result [shall be deemed misconduct and] may result in suspension or termination of employment.
[5.] 4. For this section to be applicable, testing shall be conducted only if sufficient cause exists to suspect alcohol or controlled substance use by the claimant. If sufficient cause exists to suspect prior alcohol or controlled substance use by the claimant, or the employer's policy clearly states that there will be random testing, then testing of the claimant may be conducted randomly.
[6. Notwithstanding any provision of this chapter to the contrary, any claimant found to be in violation of this section shall be subject to the cancellation of all or part of the claimants wage credits as provided by subdivision (2) of subsection 2 of section 288.050.
7.] 5. The application of the alcohol and controlled substance testing provisions of this section shall not apply in the event that the claimant is subject to the provisions of any applicable collective bargaining agreement, which contains methods for alcohol or controlled substance testing. Nothing in this chapter is intended to authorize any employer to test any applicant or employee for alcohol or drugs in any manner inconsistent with Missouri or United States constitution, law, statute or regulation, including those imposed by the Americans with Disabilities Act and the National Labor Relations Act.
[8. All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules for workplace drug and alcohol testing compiled at 49 C.F.R., Part 40. Any employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by regulations of the United States Department of Transportation. "Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites. "Chain of custody" refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling, testing, and storing specimens and reporting test results.
9.] 6. Test results from a certified laboratory create a rebuttable presumption that all specimen collection, handling, and testing for alcohol or controlled substance as defined in section 195.010, RSMo, were performed in accordance with the procedures provided for by the accrediting entity's rules and regulations relating to collection, chain of custody, handling, and specimen testing.
7. For this section to be applicable, the employee may request that a confirmation test on the specimen be conducted. "Confirmation test" means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy. In the event that a confirmation test is requested, such shall be obtained from a separate, unrelated certified laboratory and shall be at the employee's expense only if said test confirms the original, positive test results [as specified in subsection 2 of this section].
[10.] 8. Use of a controlled substance as defined under section 195.010, RSMo, under and in conformity with the lawful order of a healthcare practitioner, shall not be deemed to be misconduct connected with work for the purposes of this section.
[11.] 9. This section shall have no effect on employers who do not avail themselves of the requirements and regulations for alcohol and controlled drug testing determinations that are required to affirm misconduct connected with work findings.
[12.] 10. Any employer that initiates an alcohol and drug testing policy after January 1, 2005, shall ensure that at least sixty days elapse between a general one-time notice to all employees that an alcohol and drug testing workplace policy is being implemented and the effective date of the program.
[13. (1) In applying provisions of this chapter, it is the intent of the legislature to reject and abrogate previous case law interpretations of "misconduct connected with work" requiring a finding of evidence of impairment of work performance, including, but not limited to, the holdings contained in Baldor Electric Company v. Raylene Reasoner and Missouri Division of Employment Security, 66 S.W.3d 130 (Mo.App. E.D. 2001).
(2) In determining whether or not misconduct connected with work has occurred, neither the state, any agency of the state, nor any court of the state of Missouri shall require a finding of evidence of impairment of work performance.
14.] 11. A discharge because of a claimant's refusal to take, or to attempt to invalidate or impede accurate results of, any test for alcohol or controlled substances, as defined by section 195.010, RSMo, administered by or at the request of the employer shall be considered misconduct connected with the claimant's work. If a deputy finds that a claimant has been discharged under this subsection, such claimant shall be disqualified for waiting week credit and benefits under the provisions of section 288.050.
12. A discharge because of a claimant's admission that the results would be positive if given a test for alcohol or controlled substances, as defined by section 195.010, RSMo, administered by or at the request of the employer shall be considered misconduct connected with the claimant's work. If a deputy finds that a claimant has been discharged under this subsection, such claimant shall be disqualified for waiting week credit and benefits under the provisions of section 288.050.
13. Notwithstanding any provision of this chapter to the contrary, any claimant found to be in violation of this section shall be subject to the cancellation of all or part of the claimants wage credits as provided by [subdivision (2) of] subsection 2 of section 288.050.
14. This section shall become effective October 1, 2006.
288.047. 1. In applying provisions of this chapter, it is the intent of the legislature to reject and abrogate previous case law interpretations of misconduct connected with work requiring a finding of evidence of impairment of work performance, including, but not limited to, the holdings contained in Baldor Electric Company v. Raylene Reasoner and Missouri Division of Employment Security, 66 S.W.3d 130, (Mo. App. E.D. 2001).
2. In determining whether or not misconduct connected with work has occurred, neither the state, any agency of the state, nor any court of the state of Missouri shall require a finding of evidence of impairment of work performance.
3. This section shall become effective October 1, 2006.
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