Public Act 095-0635

Public Act 095-0635 – Public Works Projects

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.