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Arkansas Senate Bill SB341

Arkansas 2023 Regular Session

Arkansas Senate Bill SB341 Compare Versions

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11 Stricken language would be deleted from and underlined language would be added to present law.
2-Act 681 of the Regular Session
32 *DTP032* 03-29-2023 11:07:06 DTP032
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54 State of Arkansas As Engrossed: H3/29/23 1
65 94th General Assembly A Bill 2
76 Regular Session, 2023 SENATE BILL 341 3
87 4
98 By: Senator J. Boyd 5
109 By: Representative McClure 6
1110 7
1211 For An Act To Be Entitled 8
1312 AN ACT TO AMEND THE COMMERCIAL DRIVER AL COHOL AND 9
1413 DRUG TESTING ACT TO COMPLY WITH FEDERAL MOTOR CARRIER 10
1514 SAFETY ADMINISTRATIO N REGULATIONS; AND F OR OTHER 11
1615 PURPOSES. 12
1716 13
1817 14
1918 Subtitle 15
2019 TO AMEND THE COMMERCIAL DRIVER ALCOHOL 16
2120 AND DRUG TESTING ACT TO COMPLY WITH 17
2221 FEDERAL MOTOR CARRIER SAFETY 18
2322 ADMINISTRATION REGULATIONS. 19
2423 20
2524 21
2625 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 22
2726 23
2827 SECTION 1. Arkansas Code Title 27, Chapter 23, Subchapter 2 is amended 24
2928 to read as follows: 25
3029 27-23-202. Definitions. 26
3130 (a) As used in this subchapter: 27
3231 (1) "Commercial Driver's License Drug and Alcohol Clearinghouse" 28
3332 means the Federal Motor Carrier Safety Administration's database that: 29
3433 (A) Contains information required to be repo rted by 30
3534 employers and service agents regarding drivers who are subject to the 31
3635 Department of Transportation's controlled substance and alcohol testing 32
3736 regulations; and 33
3837 (B) Is used to provide information for queries concerning 34
3938 driver records; 35
4039 (2)(A)(i) “Consortium/third -party administrator” means a service 36 As Engrossed: H3/29/23 SB341
4140
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4342
4443
4544 agent that provides or coordinates the provision of drug and alcohol testing 1
4645 services to employers that are required to comply with the drug and alcohol 2
4746 testing provisions under the Federal Motor C arrier Safety Regulations, 49 3
4847 C.F.R. pts. 350-399, as in effect on January 1, 2009 November 8, 2021. 4
4948 (ii) A consortium/third -party administrator performs 5
5049 tasks concerning the operation of an employer's drug and alcohol testing 6
5150 programs. 7
5251 (B) “Consortium/third-party administrator” includes 8
5352 without limitation, groups of employers who join together to administer, as a 9
5453 single entity, the drug and alcohol testing programs of its members that are 10
5554 required under the Federal Motor Carrier Safety Regulations , 49 C.F.R. pts. 11
5655 350-399, as in effect on January 1, 2009 November 8, 2021. 12
5756 (C) A consortium/third -party administrator is not an 13
5857 “employer” for purposes of this subchapter; 14
5958 (2)(A)(3) "Department of Transportation" means an agency or 15
6059 operating administration of the United States Department of Transportation 16
6160 administering regulations requiring alcohol or drug testing under 14 C.F.R. 17
6261 pts. 61, 63, 65, 121, and 135 and 49 C.F.R. parts 199, 219, 382, and 655 as 18
6362 in effect on November 8, 2021. 19
6463 (4)(A) “Employee” means a person who is a holder of an Arkansas 20
6564 commercial driver license and is subject to drug and alcohol tests under the 21
6665 Federal Motor Carrier Safety Regulations, 49 C.F.R. pts. 350 -399, as in 22
6766 effect on January 1, 2009 November 8, 2021. 23
6867 (B) “Employee” includes an individual currently performing 24
6968 safety-sensitive transportation jobs and an applicant for employment in 25
7069 safety-sensitive transportation jobs subject to preemployment testing; and 26
7170 (3)(5)(A) “Employer” means an Arkansas person or ent ity 27
7271 employing one (1) or more employees subject to the drug and alcohol testing 28
7372 provisions under the Federal Motor Carrier Safety Regulations, 49 C.F.R. pts. 29
7473 350-399, as in effect on January 1, 2009 November 8, 2021. 30
7574 (B) “Employer” includes: 31
7675 (i) An individual who holds an Arkansas commercial 32
7776 driver license who is self -employed in a safety -sensitive transportation job 33
7877 for which drug and alcohol tests are required under the Federal Motor Carrier 34
7978 Safety Regulations, 49 C.F.R. pts. 350 -399, as in effect on January 1, 2009 35
8079 November 8, 2021; and 36 As Engrossed: H3/29/23 SB341
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8382
8483
8584 (ii) An Arkansas employer's officer, representative, 1
8685 or management personnel . 2
8786 (b) Except as provided in this subchapter, the definition 3
8887 under 49 C.F.R. § 40.3, as in effect on January 1, 2009 November 8, 2021, 4
8988 applies to a term that is used in this subchapter if that term is defined 5
9089 under 49 C.F.R. § 40.3, as in effect on January 1, 2009 November 8, 2021. 6
9190 7
9291 SECTION 2. Arkansas Code § 27 -23-203 is amended to read as follows: 8
9392 27-23-203. Applicability — Exemptions. 9
9493 (a) This subchapter applies to: 10
9594 (1) An Arkansas employer who is required to comply with the drug 11
9695 and alcohol testing provisions under the Federal Motor Carrier Safety 12
9796 Regulations, 49 C.F.R. pts. 350 -399, as in effect on January 1, 2009 November 13
9897 8, 2021; 14
9998 (2) An employee who holds an Arkansas commercial driver license 15
10099 and who either: 16
101100 (A) Is employed by an Arkansas employer in a safety -17
102101 sensitive transportation job for which drug and alcohol tests are required 18
103102 under the Federal Motor Carrier Safety Regulations, 49 C.F.R. pts. 350 -399, 19
104103 as in effect on January 1, 2009 November 8, 2021; or 20
105104 (B) Has submitted an application for employment with an 21
106105 Arkansas employer for a safety -sensitive transportation job for which drug 22
107106 and alcohol tests are required under the Federal Motor Carrier Safety 23
108107 Regulations, 49 C.F.R. pts. 350 -399, as in effect on January 1, 2009 November 24
109108 8, 2021; and 25
110109 (3) A consortium/third -party administrator that provides or 26
111110 coordinates the provision of drug and alcohol te sting services to Arkansas 27
112111 employers that are required under the Federal Motor Carrier Safety 28
113112 Regulations, 49 C.F.R. pts. 350 -399, as in effect on January 1, 2009 November 29
114113 8, 2021. 30
115114 (b) This subchapter does not apply to an individual who is exempt from 31
116115 holding a commercial driver license notwithstanding whether the individual 32
117116 holds a commercial driver license. 33
118117 34
119118 SECTION 3. Arkansas Code § 27 -23-205 is repealed: 35
120119 27-23-205. Reporting test results. 36 As Engrossed: H3/29/23 SB341
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123122
124123
125124 (a) An Arkansas employer shall report to the Office of Driver Services 1
126125 within three (3) business days the results of an alcohol screening test that 2
127126 is performed on an employee who holds an Arkansas commercial driver license 3
128127 if: 4
129128 (1) The alcohol screening test is performed pursuant to 49 5
130129 C.F.R. § 382.303 or § 382.305, as in effect on January 1, 2009; and 6
131130 (2) One (1) of the following occurs regarding the alcohol 7
132131 screening test: 8
133132 (A) A valid positive result; or 9
134133 (B) The refusal to provide a specimen for an alcohol 10
135134 screening test. 11
136135 (b) An Arkansas emplo yer shall report within three (3) business days 12
137136 to the Office of Driver Services any of the following occurrences regarding a 13
138137 drug test result of an employee who holds an Arkansas commercial driver 14
139138 license: 15
140139 (1) A valid positive result on a drug test for any of the 16
141140 following drugs: 17
142141 (A) Marijuana metabolites; 18
143142 (B) Cocaine metabolites; 19
144143 (C) Amphetamines; 20
145144 (D) Opiate metabolites; or 21
146145 (E) Phencyclidine; 22
147146 (2) The refusal to provide a specimen for a drug test; or 23
148147 (3) The submission of an ad ulterated specimen, a dilute positive 24
149148 specimen, or a substituted specimen on a drug test performed. 25
150149 (c) A consortium/third -party administrator shall report to the Office 26
151150 of Driver Services within three (3) business days the results of an alcohol 27
152151 screening test that is performed on an Arkansas employer or employee who 28
153152 holds an Arkansas commercial driver license if: 29
154153 (1) The alcohol screening test is performed pursuant to 49 30
155154 C.F.R. § 382.303 or § 382.305, as in effect on January 1, 2009; and 31
156155 (2) One (1) of the following occurs regarding the alcohol 32
157156 screening test: 33
158157 (A) A valid positive result; or 34
159158 (B) The refusal to provide a specimen for an alcohol 35
160159 screening test. 36 As Engrossed: H3/29/23 SB341
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163162
164163
165164 (d) A consortium/third -party administrator shall report within three 1
166165 (3) business days to the Office of Driver Services any of the following 2
167166 occurrences regarding a drug test result of an Arkansas employer or employee 3
168167 who holds an Arkansas commercial driver license: 4
169168 (1) A valid positive result on a drug test for any of the 5
170169 following drugs: 6
171170 (A) Marijuana metabolites; 7
172171 (B) Cocaine metabolites; 8
173172 (C) Amphetamines; 9
174173 (D) Opiate metabolites; or 10
175174 (E) Phencyclidine; 11
176175 (2) The refusal to provide a specimen for a drug test; or 12
177176 (3) The submission of an adulterated specimen, a dilute positive 13
178177 specimen, or a substituted specimen on a drug test performed. 14
179178 15
180179 SECTION 4. Arkansas Code § 27 -23-206 is amended to read as follows: 16
181180 27-23-206. Maintenance Application of Clearinghouse and maintenance of 17
182181 information — Confidentiality. 18
183182 (a)(1) The Office of Driver Services shall maintain the information 19
184183 provided under this section in a database to be known as the “Commercial 20
185184 Driver Alcohol and Drug Testing Database” for at least three (3) years. 21
186185 (b) Notwithstanding any other provision of law to the contrary, 22
187186 personally identifying information of employees in the database is 23
188187 confidential and shall be released by the Office of Driver Services only as 24
189188 provided under § 27-23-207. 25
190189 (c) The use of one (1) report generated from the database to establish 26
191190 noncompliance for the imposition of a penalty under § 27 -23-209 shall not 27
192191 subject the contents of the entire database to disclosure. 28
193192 Upon receipt of an application to issue, renew, transfer, or upgrade a 29
194193 commercial driver license or commercial learner permit, the Office of Driver 30
195194 Services shall request the driver's record from the Commercial Driver’s 31
196195 License Drug and Alcohol Clearinghou se. 32
197196 (2) If the query indicates that the driver is prohibited from 33
198197 operating a commercial motor vehicle, the application for a commercial driver 34
199198 license or commercial learner permit will be denied. 35
200199 (3) A driver may resubmit his or her application to the office 36 As Engrossed: H3/29/23 SB341
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204203
205204 after complying with the Federal Motor Carrier Safety Administration’s 1
206205 return-to-duty process, as set forth in 49 C.F.R. Part 40, Subpart O, as in 2
207206 effect on January 1, 2023. 3
208207 (4) The office shall not approve an application unless a 4
209208 negative return-to-duty test result has been reported to the Commercial 5
210209 Driver's License Drug and Alcohol Clearinghouse. 6
211210 (b)(1)(A) If the office is notified by the Federal Motor Carrier 7
212211 Safety Administration that a driver is prohibited from operating a commercia l 8
213212 motor vehicle under 49 C.F.R. 382.501(a), as in effect on January 1, 2023, 9
214213 the office shall revoke the driver's commercial driver license or commercial 10
215214 learner permit. 11
216215 (B) A revocation under subdivision (b)(1)(A) of this 12
217216 section shall be effective i mmediately upon receipt of the notification from 13
218217 the Federal Motor Carrier Safety Administration. 14
219218 (2) The revocation of the commercial driver license or 15
220219 commercial learner permit will result in a downgrade to a standard driver’s 16
221220 license. 17
222221 (3) The office shall complete and record the downgrade on the 18
223222 driver’s record within sixty (60) days of notification from the Federal Motor 19
224223 Carrier Safety Administration. 20
225224 (c) The office: 21
226225 (1) Shall only use the information received from the Commercial 22
227226 Driver’s License Drug and Alcohol Clearinghouse to determine a driver’s 23
228227 qualifications to operate a commercial motor vehicle; and 24
229228 (2) May not divulge or permit any other person or entity to 25
230229 divulge any information from the Commercial Driver’s License Drug and Alcohol 26
231230 Clearinghouse to any person or entity not directly involved in determining a 27
232231 driver’s qualifications to operate a motor vehicle. 28
233232 29
234233 SECTION 5. Arkansas Code §§ 27 -23-207 - 27-23-209 are repealed. 30
235234 27-23-207. Use of database by employers. 31
236235 (a) An Arkansas employer shall submit a request for information from 32
237236 the Commercial Driver Alcohol and Drug Testing Database for each employee who 33
238237 is subject to drug and alcohol testing under this subchapter. 34
239238 (b) The request for information shall be submitted t o the Office of 35
240239 Driver Services by the Arkansas employer with an authorization that is signed 36 As Engrossed: H3/29/23 SB341
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244243
245244 by the employee. 1
246245 (c)(1)(A) The fee for the request for information is a nominal fee not 2
247246 to exceed one dollar ($1.00) per employee per request. 3
248247 (B) The Office of Driver Services shall determine the 4
249248 amount of the fee. 5
250249 (C) The Office of Driver Services shall set the fee before 6
251250 implementation by rule. 7
252251 (2) The fee shall be assessed to and paid by the Arkansas 8
253252 employer requesting the information. 9
254253 (d) The Arkansas employer shall maintain a record of the report from 10
255254 the database that results from the request for information submitted under 11
256255 this section for at least three (3) years. 12
257256 13
258257 27-23-208. Use of database by employee. 14
259258 (a) An employee who holds a comme rcial driver license may submit a 15
260259 request for information from the Commercial Driver Alcohol and Drug Testing 16
261260 Database for his or her report. 17
262261 (b) The request for information shall be submitted with a signed 18
263262 authorization to the Office of Driver Services by the employee who holds a 19
264263 commercial driver's license. 20
265264 (c)(1) The fee for the request for information is one dollar ($1.00) 21
266265 per request. 22
267266 (2) The fee shall be submitted with the signed authorization. 23
268267 24
269268 27-23-209. Penalties. 25
270269 (a)(1) The penalty for a n Arkansas employer who knowingly fails to 26
271270 check the Commercial Driver Alcohol and Drug Testing Database as required 27
272271 under this subchapter is one thousand dollars ($1,000). 28
273272 (2) The penalty described in subdivision (a)(1) of this section 29
274273 shall be assessed beginning July 1, 2008. 30
275274 (b)(1) Except as provided under subdivision (b)(2) of this section, 31
276275 the penalty for an Arkansas employer who knowingly hires an employee with a 32
277276 record of a positive alcohol or drug test in the database is five thousand 33
278277 dollars ($5,000). 34
279278 (2) This subsection does not apply to an employee who has 35
280279 completed a treatment program or an education program prescribed by a 36 As Engrossed: H3/29/23 SB341
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284283
285284 substance abuse professional and who has been found eligible to return to 1
286285 duty by the employer as provided under 49 C.F.R. §§ 40.281 — 40.313, as in 2
287286 effect on January 1, 2009. 3
288287 (c) The penalty for an Arkansas employer who knowingly fails to report 4
289288 an occurrence regarding an alcohol or drug screening test as required under § 5
290289 27-23-205(a) or § 27-23-205(b) is five hundre d dollars ($500). 6
291290 (d)(1) The penalty for a consortium/third -party administrator who 7
292291 knowingly fails to report an occurrence regarding a drug or alcohol test 8
293292 result as required under § 27 -23-205(c) or § 27-23-205(d) is five hundred 9
294293 dollars ($500). 10
295294 (2) If the consortium/third -party administrator is out of state, 11
296295 the penalty under subdivision (d)(1) of this section shall be extended to the 12
297296 Arkansas employer that contracted with the consortium/third -party 13
298297 administrator. 14
299298 (e) The penalties under this secti on do not apply to the State of 15
300299 Arkansas, an agency of the state, or a political subdivision of the state. 16
301300 (f) Moneys collected under this section are special revenues and shall 17
302301 be deposited into the State Treasury to the credit of the State Highway and 18
303302 Transportation Department Fund. 19
304303 20
305304 SECTION 6. Arkansas Code § 27 -23-210 is amended to read as follows: 21
306305 27-23-210. Miscellaneous authority — Rules. 22
307306 (a) The Office of Driver Services shall pursue grants available 23
308307 through the United States Department of Transportation or other entity to 24
309308 assist with the cost of this program compliance with the Commercial Driver's 25
310309 License Drug and Alcohol Clearinghouse . 26
311310 (b) The Office of Driver Services may: 27
312311 (1) Adopt rules to administer this subchapter; and 28
313312 (2) Receive and expend any moneys arising from grants, 29
314313 contributions, or reimbursements from the United States Department of 30
315314 Transportation or other entity for performing its duties under this 31
316315 subchapter; and 32
317316 (3) Contract with a third party to administer the Commercial 33
318317 Driver Alcohol and Drug Testing Database . 34
319318 35
320-APPROVED: 4/11/23 36
319+/s/J. Boyd 36