If enacted into law, all American Samoa Government employees, including contract workers, elected officials and political appointees will be subject to alcohol and drug testing.  And applicants seeking a job in government will also be subject to drug testing before being considered for the job, according to a Senate bill introduced yesterday and sponsored by Sens. Paepae Iosefa Faiai and Nuanuaolefeagaiga Saoluaga T. Nua.

The bill comes more than two weeks after Gov. Lolo Matalasi Moliga established and appointed members of the American Samoa Drug Control Commission (ASDCC), which is tasked with, among other things, “reducing and eliminating the supply of illicit drugs” in American Samoa. 

Lolo has declared that there is a “drug crisis” in the territory, resulting in the set up of the ASDCC. (See Samoa News Aug. 11th edition for details).

According to the 16-page Senate bill, the proposed law allows ASG, including semi-autonomous agencies, to provide for appropriate and uniform alcohol and drug testing procedures for all government employees, applicants for ASG employment, elected officials, political appointees, contractors, and subcontractors.

An elected official is defined in the bill as any person who is elected to office for either ASG or any political office in the territory. A political appointee means any person appointed to a position, with or without compensation with either ASG, or any semi autonomous authority.

According to the bill’s preamble, ASG is “committed to protecting the safety, health and well-being of its employees and all individuals who come into contact with ASG’s workplace and property and uses its products and services.”

It claims that employees who abuse drugs have been shown to have lower job performance, reduced productivity, and greater absenteeism, not to mention higher medical and workers’ compensation costs.

Furthermore, it is in line with the “Governor’s mandate that all ASG entities work together to combat the drug problem in the territory that we now create a rehabilitative law to help those employees who have this issue”.

According to the measure, the ASG Department of Human Resources is the lead agency in handling all policies and procedures of the proposed law and DHR is also responsible for enforcing all provisions of the bill, which also provides for alcohol and drug rehabilitation services.

PROHIBITIONS

The bill details prohibited acts for employees, which may be grounds for termination. For example, under “alcohol”, it states that to report for or remain on duty with a breath alcohol concentration (BAC) of 0.02 or greater, while BAC of 0.04% or greater requires a return to “duty test” along with a clearance from a Substance Abuse Professional (SAP).

According to another provision of the bill, whenever an employee is referred to SAP to determine the need for assistance in resolving difficulties associated with drugs or alcohol prohibition, a return to duty test is required. Test results must be less than 0.02% BAC for alcohol and negative for controlled substance use before an employee can return to work.

Also prohibited, according to the bill, is for an employee to possess or use alcohol — including possession of prescription or over the counter medicines containing alcohol — while on the job.

Under the subtitle, “drugs”, prohibited acts includes, use of illegal drugs such as marijuana, cocaine, opiates, phencyclidine, amphetamines and/or controlled substances already in the law, unless a controlled substance is prescribed by a physician and then only if the physician has advised the employee that the drug will not adversely affect the employee’s ability to safely perform his or her job responsibilities.

Refusal to take the drug or alcohol test is also prohibited, the bill states.

OCCASIONS FOR EMPLOYEE TESTING

The bill details the “occasion for an ASG employee” to be tested for alcohol and drugs and this includes all new applicants for ASG employment before final selection for employment.

It states that applicants with a history of illegal drug use either by way of criminal conviction or otherwise, or who refuse to submit to a drug test or test positive shall not be selected for a job.

DHR is to schedule the test date and time and applicants will not be permitted to reschedule a drug test, except for an emergency.

For those already employed in ASG, the bill states that all employees may be tested for improper use of alcohol or illegal drugs, if the behavior of such an employee creates the basis for “reasonable suspicion” of the improper use of alcohol or illegal drugs.

Reasonable suspicion, according to the bill, may be based upon, among other things, observable behavior, such as direct observation of — for example — use or possession of alcohol or illegal drugs; physical symptoms of being under the influence of alcohol or an illegal drug; and arrest or conviction of an alcohol or drug related offense, or the identification of the employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking.

Another example of “reasonable suspicion” resulting in drug testing is information that is either provided by a reliable and credible source or is independently corroborated.

The fact that an employee had a confirmed positive test for use of illegal drugs at some prior time, or has undergone a period of rehabilitation or treatment, will not, in and of itself, be grounds for testing on the basis for reasonable suspicion.

Samoa News will report on other provisions of the bill in future editions.