An Act To Address Drug Testing in the Workplace and the Effect of Approved Substances on Current Drug Policy
Sec. A-1. 26 MRSA §682, sub-§6, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
Sec. A-2. 26 MRSA §683, first ¶, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
No employer may require, request or suggest that any employee or applicant submit to a substance abuse test except in compliance with this section. All actions taken under a substance abuse testing program shall must comply with this subchapter, rules adopted under this subchapter and the employer's written policy approved under section 686 model policy adopted pursuant to subsection 2.
Sec. A-3. 26 MRSA §683, sub-§1, as amended by PL 2011, c. 657, Pt. AA, §72, is repealed.
Sec. A-4. 26 MRSA §683, sub-§2, as amended by PL 2009, c. 133, §2, is further amended to read:
(1) Which positions, if any, will be are subject to testing, including any positions subject to random or arbitrary testing under section 684, subsection 3. For applicant testing and probable cause testing of employees, an employer may designate that all positions are subject to testing; and
(2) The procedure to be followed in selecting employees to be tested on a random or arbitrary basis under section 684, subsection 3;
(1) The collection of any sample for use in a substance abuse test must be conducted in a medical facility and supervised by a licensed physician or nurse. A medical facility includes a first aid station located at the work site.
(2) An employer may not require an employee or applicant to remove any clothing for the purpose of collecting a urine sample, except that:
(a) An employer may require that an employee or applicant leave any personal belongings other than clothing and any unnecessary coat, jacket or similar outer garments outside the collection area; or
(b) If it is the standard practice of an off-site medical facility to require the removal of clothing when collecting a urine sample for any purpose, the physician or nurse supervising the collection of the sample in that facility may require the employee or applicant to remove their the employee's or the applicant's clothing.
(3) No employee or applicant may be required to provide a urine sample while being observed, directly or indirectly, by another individual.
(4) The employer may take additional actions necessary to ensure the integrity of a urine sample if the sample collector or testing laboratory determines that the sample may have been substituted, adulterated, diluted or otherwise tampered with in an attempt to influence test results. The Department of Health and Human Services shall adopt rules governing when those additional actions are justified and the scope of those actions. These rules may not permit the direct or indirect observation of the collection of a urine sample. If an employee or applicant is found to have twice substituted, adulterated, diluted or otherwise tampered with the employee's or applicant's urine sample, as determined under the rules adopted by the department, the employee or applicant is deemed to have refused to submit to a substance abuse test.
(5) If the employer proposes to use the type of screening test described in section 682, subsection 7, paragraph A, subparagraph (1), the employer's policy must include:
(a) Procedures to ensure the confidentiality of test results as required in section 685, subsection 3; and
(b) Procedures for training persons performing the test in the proper manner of collecting samples and reading results, maintaining a proper chain of custody and complying with other applicable provisions of this subchapter;
(1) Cutoff levels for confirmation tests for marijuana may not be lower than 15 nanograms of delta-9-tetrahydrocannabinol-9-carboxylic acid per milliliter for urine samples.
(2) The Department of Health and Human Services shall adopt rules under section 687 regulating screening and confirmation cutoff levels for other substances of abuse, including those substances tested for in blood samples under subsection 5, paragraph B, to ensure that levels are set within known tolerances of test methods and above mere trace amounts. An employer may request that the Department of Health and Human Services establish a cutoff level for any substance of abuse for which the department has not established a cutoff level.
(3) Notwithstanding subparagraphs (1) and (2), if the Department of Health and Human Services does not have established cutoff levels or procedures for any specific federally recognized substance abuse test, the minimum cutoff levels and procedures that apply are those set forth in the Federal Register, Volume 69, No. 71, sections 3.4 to 3.7 on pages 19697 and 19698;
An employer must consult with the employer's employees in the development of any portion of a substance abuse testing policy under this subsection that relates to the employees. The employer is not required to consult with the employees on those portions of a policy that relate only to applicants. The employer shall send a copy of the final written policy to the Department of Labor for review under section 686. The employer may not implement the policy until the Department of Labor approves the policy. The employer shall send a copy of any proposed change in an approved written policy to the Department of Labor for review under section 686. The employer may not implement the change until the Department of Labor approves the change adoption of the model policy.
Sec. A-5. 26 MRSA §683, sub-§3, as amended by PL 1995, c. 324, §5, is further amended to read:
Sec. A-6. 26 MRSA §683, sub-§5, ¶B, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3 and amended by PL 2003, c. 689, Pt. B, §6, is further amended to read:
(1) The Department of Health and Human Services may identify, by rules adopted under section 687, other substances of abuse for which an employee may request a blood sample be tested instead of a urine sample if the department determines that a sufficient correlation exists between the presence of the substance in an individual's blood and its effect upon the individual's performance.
(2) No An employer may not require, request or suggest that any employee or applicant provide a blood sample for substance abuse testing purposes nor may any employer conduct a substance abuse test upon a blood sample except as provided in this paragraph.
(3) Applicants do not have the right to require the employer to test a blood sample as provided in this paragraph.
Sec. A-7. 26 MRSA §683, sub-§8, ¶D, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is repealed.
Sec. A-8. 26 MRSA §684, sub-§3, ¶C, as enacted by PL 2003, c. 547, §2, is amended to read:
(1) An employer may establish a testing program under this paragraph only if the employer has 50 or more employees who are not covered by a collective bargaining agreement.
(2) The written policy required by section 683, subsection 2 with respect to a testing program under this paragraph must be developed by a committee of at least 10 of the employer's employees. The employer shall appoint members to the committee from a cross-section of employees who are eligible to be tested. The committee must include a medical professional who is trained in procedures for testing for substances of abuse. If no such person is employed by the employer, the employer shall obtain the services of such a person to serve as a member of the committee created under this subparagraph.
(3) The written policy developed under subparagraph (2) employer's workplace substance abuse testing policy must also require that selection of employees for testing be performed by a person or entity not subject to the employer's influence, such as a medical review officer. Selection must be made from a list, provided by the employer, of all employees subject to testing under this paragraph. The list may not contain information that would identify the employee to the person or entity making the selection.
(4) Employees who are covered by a collective bargaining agreement are not included in testing programs pursuant to this paragraph unless they agree to be included pursuant to a collective bargaining agreement as described under paragraph A.
(5) Before initiating a testing program under this paragraph, the employer must obtain from the Department of Labor approval of the policy developed by the employee committee, as required in section 686. If the employer does not approve of the written policy developed by the employee committee, the employer may decide not to submit the policy to the department and not to establish the testing program. The employer may not change the written policy without approval of the employee committee.
(6) The employer may not discharge, suspend, demote, discipline or otherwise discriminate with regard to compensation or working conditions against an employee for participating or refusing to participate in an employee committee created pursuant to this paragraph.
Sec. A-9. 26 MRSA §684, sub-§4, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
Sec. A-10. 26 MRSA §685, sub-§2, ¶C, as amended by PL 1995, c. 344, §1, is further amended to read:
(1) If the employer has an employee assistance program that offers counseling or rehabilitation services, the employee may choose to enter that program at the employer's expense. If these services are not available from an employer's employee assistance program or if the employee chooses not to participate in that program, the employee may enter a public or private rehabilitation program.
(a) Except to the extent that costs are covered by a group health insurance plan, the costs of the public or private rehabilitation program must be equally divided between the employer and employee if the employer has more than 20 full-time employees are the responsibility of the employee. This requirement does not apply to municipalities or other political subdivisions of the State or to any employer when the employee is tested because of the alcohol and controlled substance testing mandated by the federal Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, Title V. If necessary, the employer shall assist in financing the cost share of the employee through a payroll deduction plan.
(b) Except to the extent that costs are covered by a group health insurance plan, an employer with 20 or fewer full-time employees, a municipality or other political subdivision of the State is not required to pay for any costs of rehabilitation or treatment under any public or private rehabilitation program. An employer is not required to pay for the costs of rehabilitation if the employee was tested because of the alcohol and controlled substance testing mandated by the federal Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, Title V.
(2) No employer may take any action described in paragraph A while an employee is participating in a rehabilitation program, except as provided in subparagraph (2-A) and except that an employer may change the employee's work assignment or suspend the employee from active duty to reduce any possible safety hazard. Except as provided in subparagraph (2-A), an employee's pay or benefits may not be reduced while an employee is participating in a rehabilitation program, provided except that the employer is not required to pay the employee for periods in which the employee is unavailable for work for the purposes of rehabilitation or while the employee is medically disqualified. The employee may apply normal sick leave and vacation time, if any, for these periods.
(2-A) A rehabilitation or treatment provider shall promptly notify the employer if the employee fails to comply with the prescribed rehabilitation program before the expiration of the 6-month period provided in paragraph B. Upon receipt of this notice, the employer may take any action described in paragraph A.
(3) Except as provided in divisions (a) and (b), upon successfully completing the rehabilitation program, as determined by the rehabilitation or treatment provider after consultation with the employer, the employee is entitled to return to the employee's previous job with full pay and benefits unless conditions unrelated to the employee's previous confirmed positive result make the employee's return impossible. Reinstatement of the employee must may not conflict with any provision of a collective bargaining agreement between the employer and a labor organization that is the collective bargaining representative of the unit of which the employee is or would be a part. If the rehabilitation or treatment provider determines that the employee has not successfully completed the rehabilitation program within 6 months after starting the program, the employer may take any action described in paragraph A.
(a) If the employee who has completed rehabilitation previously worked in an employment position subject to random or arbitrary testing under an the employer's written workplace substance abuse testing policy adopted under section 683, subsection 2, the employer may refuse to allow the employee to return to the previous job if the employer believes that the employee may pose an unreasonable safety hazard because of the nature of the position. The employer shall attempt to find suitable work for the employee immediately after refusing the employee's return to the previous position. No reduction may be made in the employee's previous benefits or rate of pay while awaiting reassignment to work or while working in a position other than the previous job. The employee shall must be reinstated to the previous position or to another position with an equivalent rate of pay and benefits and with no loss of seniority within 6 months after returning to work in any capacity with the employer unless the employee has received a subsequent confirmed positive result within that time from a test administered under this subchapter or unless conditions unrelated to the employee's previous confirmed positive test result make that reinstatement or reassignment impossible. Placement of the employee in suitable work and reinstatement may not conflict with any provision of a collective bargaining agreement between the employer and a labor organization that is the collective bargaining representative of the unit of which the employee is or would be a part.
(b) Notwithstanding division (a), if an employee who has successfully completed rehabilitation is medically disqualified, the employer is not required to reinstate the employee or find suitable work for the employee during the period of disqualification. The employer is not required to compensate the employee during the period of disqualification. Immediately after the employee's medical disqualification ceases, the employer's obligations under division (a) attach commence as if the employee had successfully completed rehabilitation on that date.
Sec. A-11. 26 MRSA §685, sub-§3, ¶A, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
(1) The release of this information when required or permitted by state or federal law , including release under section 683, subsection 8, paragraph D; or
(2) The use of this information in any grievance procedure, administrative hearing or civil action relating to the imposition of the test or the use of test results.
Sec. A-12. 26 MRSA §686, as amended by PL 2009, c. 133, §3, is repealed.
Sec. A-13. 26 MRSA §690, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is repealed.
Sec. A-14. Effective date. This Part takes effect July 1, 2016.
Sec. B-1. Marijuana workplace policy. The Department of Health and Human Services and the Department of Labor shall jointly develop a policy to address the impact of medical marijuana use in the workplace, including what steps the State recommends for an employer to take if an employee tests positive for marijuana use. By December 2, 2015, the Department of Labor shall submit its report detailing the marijuana workplace policy along with any recommended legislation to the Joint Standing Committee on Labor, Commerce, Research and Economic Development. The Joint Standing Committee on Labor, Commerce, Research and Economic Development may submit a bill based upon the report to the Second Regular Session of the 127th Legislature.
Current law requires employers that want to provide a drug-free workplace by testing applicants or employees for substance abuse to develop and file a policy with the Department of Labor. The Bureau of Labor Standards reviews the policies to ensure compliance with state laws and rules. This bill provides employers with a single, consistent model policy. The model policy, which must be established by the Commissioner of Labor and managed by the department, is intended to encourage greater participation by employers to reduce substance abuse in the workplace. The bill requires an employer to adopt the model policy before establishing a substance abuse testing program. It removes the requirements that employers provide an employee assistance program and pay for half of rehabilitation beyond services provided through health care benefits. Employers may offer an employee assistance program if they choose. The bill amends the definition of "probable cause" to provide that a single work-related accident is probable cause to suspect an employee is under the influence of a substance of abuse. This bill requires the Department of Labor and Department of Health and Human Services to develop a policy to address the impact of medical marijuana use in the workplace for submission to the Joint Standing Committee on Labor, Commerce, Research and Economic Development by December 2, 2015.