Sub. H. B. No. 80 As Reported by the House Commerce and Labor Committee

Representatives Smith, G., Flowers, Hartnett, Calvert, Hagan, Stewart, D., Distel, Yuko, Cassell, Collier, Combs

A BILL

To enact sections 153.03 and 153.031 of the Revised 1
Code to prohibit a state agency from awarding a 2
public improvement contract unless its terms 3
require the contractors and subcontractors to 4
participate in a specified drug-free workplace 5
program. 6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 153.03 and 153.031 of the Revised 7
Code be enacted to read as follows: 8

       Sec. 153.03. (A) As used in this section: 9

        (1) "Contracting authority" means any state agency or other 10
state instrumentality that is authorized to award a public 11
improvement contract. 12

        (2) "Bidder" means a person who submits a bid to a 13
contracting authority to perform work under a public improvement 14
contract. 15

       (3) "Contractor" means any person with whom a contracting 16
authority has entered into a public improvement contract to 17
provide labor for a public improvement. 18

       (4) "Subcontractor" means any person who undertakes to 19
provide any part of the labor on the site of a public improvement 20
under a contract with any person other than the contracting 21
authority, including all such persons in any tier. 22

       (5) "Construction manager" means a person with substantial 23
discretion and authority to plan, coordinate, manage, and direct 24
all phases of a project for the construction, demolition, 25
alteration, repair, or reconstruction of any public building, 26
structure, or other improvement. 27

       (6) "Labor" means any activity performed by a person that 28
contributes to the direct installation of a product, component, or 29
system, or that contributes to the direct removal of a product, 30
component, or system. 31

       (7) "Public improvement contract" means any contract that is 32
financed in whole or in part with money appropriated by the 33
general assembly, or that is financed in any manner by a 34
contracting authority, and that is awarded by a contracting 35
authority for the construction, alteration, or repair of any 36
public building, public highway, or other public improvement. 37

       (8) "State agency" means every organized body, office, or 38
agency established by the laws of this state for the exercise of 39
any function of state government. 40

        (B) A contracting authority shall not award a public 41
improvement contract to a bidder unless the contract contains both 42
of the following: 43

       (1) The statements described in division (E) of this section; 44

       (2) Terms that require the contractor to be enrolled in and 45
be in good standing in the drug-free workplace program of the 46
bureau of workers' compensation or a comparable program approved 47
by the bureau that requires an employer to do all of the 48
following: 49

       (a) Develop, implement, and provide to all employees a 50
written substance use policy that conveys full and fair disclosure 51
of the employer's expectations that no employee be at work with 52
alcohol or drugs in the employee's system, and specifies the 53
consequences for violating the policy. 54

       (b) Conduct drug and alcohol tests on employees in accordance 55
with division (B)(2)(c) of this section and under the following 56
conditions: 57

       (i) Prior to an individual's employment or during an 58
employee's probationary period for employment, which shall not 59
exceed one hundred twenty days after the probationary period 60
begins; 61

       (ii) At random intervals while an employee provides labor or 62
onsite supervision of labor for a public improvement contract. The 63
employer shall use the neutral selection procedures required by 64
the United States department of transportation to determine which 65
employees to test and when to test those employees. 66

       (iii) After an accident at the site where labor is being 67
performed pursuant to a public improvement contract. For purposes 68
of this division, "accident" has the meaning established in rules 69
the administrator of workers' compensation adopts pursuant to 70
Chapters 4121. and 4123. of the Revised Code for the bureau's 71
drug-free workplace program, as those rules exist on the effective 72
date of this section. 73

       (iv) When the employer or a construction manager has 74
reasonable suspicion that prior to an accident an employee may be 75
in violation of the employer's written substance use policy. For 76
purposes of this division, "reasonable suspicion" has the meaning 77
established in rules the administrator adopts pursuant to Chapters 78
4121. and 4123. of the Revised Code for the bureau's drug-free 79
workplace program, as those rules exist on the effective date of 80
this section. 81

       (v) Prior to an employee returning to a work site to provide 82
labor for a public improvement contract after the employee tested 83
positive for drugs or alcohol, and again after the employee 84
returns to that site to provide labor under that contract, as 85
required by either the employer, the construction manager, or 86
conditions in the contract. 87

       (c) Use the following types of tests when conducting a test 88
on an employee under the conditions described in division 89
(B)(2)(b) of this section: 90

        (i) Drug and alcohol testing that uses the federal testing 91
model that the administrator has incorporated into the bureau's 92
drug-free workplace program; 93

       (ii) Testing to determine whether the concentration of 94
alcohol on an employee's breath is equal to or in excess of the 95
level specified in division (A)(1)(d) or (h) of section 4511.19 of 96
the Revised Code, which is obtained through an evidentiary breath 97
test conducted by a breath alcohol technician using breath testing 98
equipment that meets standards established by the United States 99
department of transportation, or, if such technician and equipment 100
are unavailable, a blood test may be used to determine whether the 101
concentration of alcohol in an employee's blood is equal to or in 102
excess of the level specified in division (A)(1)(b) or (f) of 103
section 4511.19 of the Revised Code. 104

       (d) Require all employees to receive at least one hour of 105
training that increases awareness of and attempts to deter 106
substance abuse and supplies information about employee assistance 107
to deal with substance abuse problems, and require all supervisors 108
to receive one additional hour of training in skill building to 109
teach a supervisor how to observe and document employee behavior 110
and intervene when reasonable suspicion exists of substance use; 111

       (e) Require all supervisors and employees to receive the 112
training described in division (B)(2)(d) of this section before 113
work for a public improvement contract commences or during the 114
term of a public improvement contract; 115

       (f) Require that the training described in division (B)(2)(d) 116
of this section be provided using material prepared by an 117
individual who has credentials or experience in substance abuse 118
training; 119

       (g) Assist employees by providing, at a minimum, a list of 120
community resources from which an employee may obtain help with 121
substance abuse problems, except that this requirement does not 122
preclude an employer from having a policy that allows an employer 123
to terminate an employee's employment the first time the employee 124
tests positive for drugs or alcohol or if an employee refuses to 125
be tested for drugs, alcohol, or both. 126

       (C) Any time the United States department of health and human 127
services changes the federal testing model that the administrator 128
has incorporated into the bureau's drug-free workplace program in 129
a manner that allows additional or new products, protocols, 130
procedures, and standards in the model, the administrator may 131
adopt rules establishing standards to allow employers to use those 132
additional or new products, protocols, procedures, or standards to 133
satisfy the requirements of division (B)(2)(c) of this section, 134
and the bureau may approve an employer's drug-free workplace 135
program that meets the administrator's standards and the other 136
requirements specified in division (B)(2) of this section. 137

       (D) A contracting authority shall ensure that money 138
appropriated by the general assembly for the contracting 139
authority's public improvement contract or, in the case of a state 140
institution of higher education, the institution's financing for 141
the public improvement contract, is not expended unless the 142
contractor for that contract is enrolled in and in good standing 143
in a drug-free workplace program described in division (B) of this 144
section. Prior to awarding a contract to a bidder, a contracting 145
authority shall verify that the bidder is enrolled in and in good 146
standing in such a program. 147

       (E) A contracting authority shall include all of the 148
following statements in the public improvement contract entered 149
into between the contracting authority and a contractor for the 150
public improvement: 151

       (1) "Each contractor shall require all subcontractors with 152
whom the contractor is in contract for the public improvement to 153
be enrolled in and be in good standing in the Bureau of Workers' 154
Compensation's Drug-Free Workplace Program or a comparable program 155
approved by the Bureau that meets the requirements specified in 156
section 153.03 of the Revised Code prior to a subcontractor 157
providing labor at the project site of the public improvement." 158

       (2) "Each subcontractor shall require all lower-tier 159
subcontractors with whom the subcontractor is in contract for the 160
public improvement to be enrolled in and be in good standing in 161
the Bureau of Workers' Compensation's Drug-Free Workplace Program 162
or a comparable program approved by the Bureau that meets the 163
requirements specified in section 153.03 of the Revised Code prior 164
to a lower-tier subcontractor providing labor at the project site 165
of the public improvement." 166

       (3) "Failure of a contractor to require a subcontractor to be 167
enrolled in and be in good standing in the Bureau of Workers' 168
Compensation's Drug-Free Workplace Program or a comparable program 169
approved by the Bureau that meets the requirements specified in 170
section 153.03 of the Revised Code prior to the time that the 171
subcontractor provides labor at the project site will result in 172
the contractor being found in breach of the contract and that 173
breach shall be used in the responsibility analysis of that 174
contractor or the subcontractor who was not enrolled in a program 175
for future contracts with the state for five years after the date 176
of the breach." 177

       (4) "Failure of a subcontractor to require a lower-tier 178
subcontractor to be enrolled in and be in good standing in the 179
Bureau of Workers' Compensation's Drug-Free Workplace Program or a 180
comparable program approved by the Bureau that meets the 181
requirements specified in section 153.03 of the Revised Code prior 182
to the time that the lower-tier subcontractor provides labor at 183
the project site will result in the subcontractor being found in 184
breach of the contract and that breach shall be used in the 185
responsibility analysis of that subcontractor or the lower-tier 186
subcontractor who was not enrolled in a program for future 187
contracts with the state for five years after the date of the 188
breach." 189

       (F) In the event a construction manager intends and is 190
authorized to provide labor for a public improvement contract, a 191
contracting authority shall verify, prior to awarding a contract 192
for construction management services, that the construction 193
manager was enrolled in and in good standing in a drug-free 194
workplace program described in division (B) of this section prior 195
to entering into the public improvement contract. The contracting 196
authority shall not award a contract for construction manager 197
services to a construction manager if the construction manager is 198
not enrolled in or in good standing in such a program. 199

       Sec. 153.031. The general assembly intends the drug-free 200
workplace programs required by section 153.03 of the Revised Code 201
to be limited to the constructing, altering, or repairing of 202
public improvements of the state and to be of assistance in 203
ensuring that such public improvements are constructed, altered, 204
or repaired in a manner that protects the safety of the citizens 205
of this state. 206

Section 1. That sections 153.03 and 153.031 of the Revised	7
Code be enacted to read as follows:	8

(1) "Contracting authority" means any state agency or other	10
state instrumentality that is authorized to award a public	11
improvement contract.	12

(2) "Bidder" means a person who submits a bid to a	13
contracting authority to perform work under a public improvement	14
contract.	15

(3) "Contractor" means any person with whom a contracting	16
authority has entered into a public improvement contract to	17
provide labor for a public improvement.	18

(4) "Subcontractor" means any person who undertakes to	19
provide any part of the labor on the site of a public improvement	20
under a contract with any person other than the contracting	21
authority, including all such persons in any tier.	22

(5) "Construction manager" means a person with substantial	23
discretion and authority to plan, coordinate, manage, and direct	24
all phases of a project for the construction, demolition,	25
alteration, repair, or reconstruction of any public building,	26
structure, or other improvement.	27

(6) "Labor" means any activity performed by a person that	28
contributes to the direct installation of a product, component, or	29
system, or that contributes to the direct removal of a product,	30
component, or system.	31

(7) "Public improvement contract" means any contract that is	32
financed in whole or in part with money appropriated by the	33
general assembly, or that is financed in any manner by a	34
contracting authority, and that is awarded by a contracting	35
authority for the construction, alteration, or repair of any	36
public building, public highway, or other public improvement.	37

(8) "State agency" means every organized body, office, or	38
agency established by the laws of this state for the exercise of	39
any function of state government.	40

(B) A contracting authority shall not award a public	41
improvement contract to a bidder unless the contract contains both	42
of the following:	43

(2) Terms that require the contractor to be enrolled in and	45
be in good standing in the drug-free workplace program of the	46
bureau of workers' compensation or a comparable program approved	47
by the bureau that requires an employer to do all of the	48
following:	49

(a) Develop, implement, and provide to all employees a	50
written substance use policy that conveys full and fair disclosure	51
of the employer's expectations that no employee be at work with	52
alcohol or drugs in the employee's system, and specifies the	53
consequences for violating the policy.	54

(b) Conduct drug and alcohol tests on employees in accordance	55
with division (B)(2)(c) of this section and under the following	56
conditions:	57

(i) Prior to an individual's employment or during an	58
employee's probationary period for employment, which shall not	59
exceed one hundred twenty days after the probationary period	60
begins;	61

(ii) At random intervals while an employee provides labor or	62
onsite supervision of labor for a public improvement contract. The	63
employer shall use the neutral selection procedures required by	64
the United States department of transportation to determine which	65
employees to test and when to test those employees.	66

(iii) After an accident at the site where labor is being	67
performed pursuant to a public improvement contract. For purposes	68
of this division, "accident" has the meaning established in rules	69
the administrator of workers' compensation adopts pursuant to	70
Chapters 4121. and 4123. of the Revised Code for the bureau's	71
drug-free workplace program, as those rules exist on the effective	72
date of this section.	73

(iv) When the employer or a construction manager has	74
reasonable suspicion that prior to an accident an employee may be	75
in violation of the employer's written substance use policy. For	76
purposes of this division, "reasonable suspicion" has the meaning	77
established in rules the administrator adopts pursuant to Chapters	78
4121. and 4123. of the Revised Code for the bureau's drug-free	79
workplace program, as those rules exist on the effective date of	80
this section.	81

(v) Prior to an employee returning to a work site to provide	82
labor for a public improvement contract after the employee tested	83
positive for drugs or alcohol, and again after the employee	84
returns to that site to provide labor under that contract, as	85
required by either the employer, the construction manager, or	86
conditions in the contract.	87

(c) Use the following types of tests when conducting a test	88
on an employee under the conditions described in division	89
(B)(2)(b) of this section:	90

(i) Drug and alcohol testing that uses the federal testing	91
model that the administrator has incorporated into the bureau's	92
drug-free workplace program;	93

(ii) Testing to determine whether the concentration of	94
alcohol on an employee's breath is equal to or in excess of the	95
level specified in division (A)(1)(d) or (h) of section 4511.19 of	96
the Revised Code, which is obtained through an evidentiary breath	97
test conducted by a breath alcohol technician using breath testing	98
equipment that meets standards established by the United States	99
department of transportation, or, if such technician and equipment	100
are unavailable, a blood test may be used to determine whether the	101
concentration of alcohol in an employee's blood is equal to or in	102
excess of the level specified in division (A)(1)(b) or (f) of	103
section 4511.19 of the Revised Code.	104

(d) Require all employees to receive at least one hour of	105
training that increases awareness of and attempts to deter	106
substance abuse and supplies information about employee assistance	107
to deal with substance abuse problems, and require all supervisors	108
to receive one additional hour of training in skill building to	109
teach a supervisor how to observe and document employee behavior	110
and intervene when reasonable suspicion exists of substance use;	111

(e) Require all supervisors and employees to receive the	112
training described in division (B)(2)(d) of this section before	113
work for a public improvement contract commences or during the	114
term of a public improvement contract;	115

(f) Require that the training described in division (B)(2)(d)	116
of this section be provided using material prepared by an	117
individual who has credentials or experience in substance abuse	118
training;	119

(g) Assist employees by providing, at a minimum, a list of	120
community resources from which an employee may obtain help with	121
substance abuse problems, except that this requirement does not	122
preclude an employer from having a policy that allows an employer	123
to terminate an employee's employment the first time the employee	124
tests positive for drugs or alcohol or if an employee refuses to	125
be tested for drugs, alcohol, or both.	126

(C) Any time the United States department of health and human	127
services changes the federal testing model that the administrator	128
has incorporated into the bureau's drug-free workplace program in	129
a manner that allows additional or new products, protocols,	130
procedures, and standards in the model, the administrator may	131
adopt rules establishing standards to allow employers to use those	132
additional or new products, protocols, procedures, or standards to	133
satisfy the requirements of division (B)(2)(c) of this section,	134
and the bureau may approve an employer's drug-free workplace	135
program that meets the administrator's standards and the other	136
requirements specified in division (B)(2) of this section.	137

(D) A contracting authority shall ensure that money	138
appropriated by the general assembly for the contracting	139
authority's public improvement contract or, in the case of a state	140
institution of higher education, the institution's financing for	141
the public improvement contract, is not expended unless the	142
contractor for that contract is enrolled in and in good standing	143
in a drug-free workplace program described in division (B) of this	144
section. Prior to awarding a contract to a bidder, a contracting	145
authority shall verify that the bidder is enrolled in and in good	146
standing in such a program.	147

(E) A contracting authority shall include all of the	148
following statements in the public improvement contract entered	149
into between the contracting authority and a contractor for the	150
public improvement:	151

(1) "Each contractor shall require all subcontractors with	152
whom the contractor is in contract for the public improvement to	153
be enrolled in and be in good standing in the Bureau of Workers'	154
Compensation's Drug-Free Workplace Program or a comparable program	155
approved by the Bureau that meets the requirements specified in	156
section 153.03 of the Revised Code prior to a subcontractor	157
providing labor at the project site of the public improvement."	158

(2) "Each subcontractor shall require all lower-tier	159
subcontractors with whom the subcontractor is in contract for the	160
public improvement to be enrolled in and be in good standing in	161
the Bureau of Workers' Compensation's Drug-Free Workplace Program	162
or a comparable program approved by the Bureau that meets the	163
requirements specified in section 153.03 of the Revised Code prior	164
to a lower-tier subcontractor providing labor at the project site	165
of the public improvement."	166