CHAPTER 340

FORMERLY

SENATE BILL NO. 311

AN ACT TO AMEND CHAPTER 89, TITLE 29. DELAWARE CODE RELATING TO MANDATORY SCREENING FOR ILLEGAL USE OF DRUGS.

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

WHEREAS, the integrity of employees of the Department of Correction is critical to the safety of the citizens of Delaware; and

WHEREAS, public safety often require that correctional employees exercise undeviating concentration, split second judgment,-and self control; and

WHEREAS, these employees are a critical harrier between inmates and the public at large; and

WHEREAS, a large percentage of inmates, detainees and probationers in the custody of the Department of Correction have drug and alcohol abuse problems; and

WHEREAS, this environment creates a high demand for contraband and thereby increases the potential for corruption; and

WHEREAS, employees using illegal drugs who come into regular contact with inmates may be more likely to supply contraband to inmates: and

WI-IEREAS, the infiltration and use of illegal drugs and contraband in our correctional institutions is a continuing threat to the security of our correctional institutions and the integrity of our probation operations: and

WHEREAS, our correctional employees play a crucial role in combating that threat and to properly carry out these duties it is essential that these employees not be subject to any undue influence; and

WHEREAS, the Governor's Gander Hill Task Force recommended implementing a mandatory drug testing policy, including random testing.

NOW, THEREFORE,

Section I. Amend Chapter 89, Title 29, Delaware Code by designating existing sections of Chapter 89 as "Subchapter I. General Provisions" and inserting after existing § 8914 the following:

"Subchapter 11 Mandatory Screening For Use of Illegal Drugs

§ 8920. Purpose.

The purpose of this subchapter is to establish mandatory drug testing program for certain Department of Correction employees who hold positions that are directly related to public safety and the security of our correctional institutions and probation operations.

§ 8921. Definitions.

As used in this subchapter unless the context otherwise requires:

(I) 'Department technical representative' means an employee of the Department

designated by the Commissioner to ensure compliance with the requirements of this subchapter and whose duties include, but are not limited to, the following:

(a) Scheduling of urine specimen collections;

(b) Designation of collection sites;

(c) Assuring the integrity of collection procedures and sites;

(d) Assuring the integrity of testing and specimen retention procedures;

(e) Reviewing the data and reports; and

(1) Acting as the Commissioner's contact person for the testing for illegal drugs.

(2) 'Applicant' means any person who is seeking employment with the Department

for a security sensitive position.

(3) 'Applicant-employee' means an employee of the State who is an applicant for a

security sensitive position in the Department.

(4) 'Employee' means a person with whom the State has an employer-employee

relationship,

(5) 'Security sensitive position' means any of the following positions in the

Department:

(a) The Commissioner;

(b) Bureau Chiefs;

(c) Security positions;

(a) Employees of the Department who are required or permitted to carry a firearm;

(d) Department employees who have a significant degree of responsibility for the safety of others and whose impaired performance or undue influence of that Department employee could potentially result in death or injury to employees or others; or

(e) Department employees as otherwise designated by the Department pursuant to its policies and procedures.

(6) 'Random 'resting' means tests based upon an appropriate random sampling technique, with significant samples of Department employees in security sensitive positions being tested on a periodic basis with all such employees having a reasonably equal chance of being tested.

(7) 'Incident Triggered Testing' means any incident involving death or serious physical injury to a Department employee, loss or significant damage to Department property, escape of an inmate or detentioner where the security sensitive employee was directly involved in the incident.

(8) 'Reasonable suspicion' means when the Department, acting through its

supervisory personnel, has reasonable suspicion that the appearance or conduct of Department employees in a security sensitive position is indicative of their having being impaired by an illegal drug.

§ 8922. Drug Testing Required.

(a) Random Testing -- All Department employees in security sensitive positions shall be subject to random testing for the illegal use of drugs.

(b) Pre-employment Testing -- The Department shall test all security sensitive applicants and applicant employees for the illegal use of drugs

(c) Incident Triggered 'resting -- All Department employees in security sensitive positions shall be subject to incident triggered testing.

(d) Reasonable Suspicion Testing -- The Department may, acting through its supervisory personnel, conduct a drug test based on a reasonable suspicion that the appearance or conduct of the Department employee in a security sensitive position is indicative of being impaired by an illegal drug. The questioned conduct or appearance should be witnessed and must be documented in writing by a supervisor where practicable.

(e) Nothing in this section shall be construed to limit the Department's authority pursuant to any other statute, regulation, policy, procedure. contract or other source of authority to test any Department employee for drugs.

§ 8923. Drugs to be screened.

(a) The illegal drugs that shall be screened include, but are not limited to, the following:

(I) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates:

(4) Phencyclidine ("PCP"); and

(5) Amphetamines.

(b) The Department technical representative may submit to the Commissioner a written request or approval to screen for an illegal drug or controlled substance other than those listed under subsection (al of this section. IF the Commissioner approves the request. the Department technical representative shall notify all Department employees in security sensitive positions of the addition of that drug to the list of those to be screened.

§ 8924. Arrest Notification Required.

Any security sensitive employee arrested for an alleged violation of Chapter 47 of Title 16 of the Delaware Code shall report the arrest to the Department on the employee's next scheduled work day, or within one week, whichever is earlier. Failure to report the arrest shall result in disciplinary action up to and including dismissal.

8925. Policies and Procedures.

The Department shall promulgate policies and procedures for the Rill implementation of the subchapter."

Section 2. The requirements Of this act shall be contingent upon adequate funding to carry out the testing required under this Act. The policies and procedures required by § 8925 shall be promulgated no later than 90 days after the effective date of this act.

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable,

Approved May 24, 1996