An Act To Reduce Impairment on the Job and Improve Workplace Safety by Amending the Laws Governing Employment Practices Concerning Substance Use Testing
Sec. 1. 26 MRSA §681, as amended by PL 2011, c. 196, §1, is further amended to read:
§ 681. Purpose; applicability
A labor organization with a collective bargaining agreement effective in the State may conduct a program of substance abuse use testing of its members. The program may include testing of new members and periodic testing of all members. It may not include random testing of members. The program may be voluntary. The results may not be used to preclude referral to a job where testing is not required or to otherwise discipline a member. Sample collection and testing must be done in accordance with this subchapter. Approval of the Department of Labor is not required.
(1) Prepare a substance use testing plan for employees who are not federally regulated and provide a copy of that plan to employees and the Bureau of Labor Standards prior to testing. The plan must identify the kinds of testing to be administered, notification and administration procedures and how confirmed positive test results that may be allowable under state law but not federal law will be handled for the employees who are not federally regulated. The plan must describe a process to ensure, at a minimum, that provisions of 49 Code of Federal Regulations, Part 40, Subpart O will be followed to allow employees who are not federally regulated and who test positive the opportunity to contact and work with substance abuse professionals in evaluation, treatment and return-to-duty processes; and
(2) Follow corresponding federal notification provisions and procedural protocols for employees who are not federally regulated and comply with section 683, subsection 8, paragraph D in reporting annually the results of substance use testing of such employees.
Sec. 2. 26 MRSA §682, sub-§1-A is enacted to read:
Sec. 3. 26 MRSA §682, sub-§2, as amended by PL 1995, c. 324, §3, is further amended to read:
Sec. 4. 26 MRSA §682, sub-§3-A, as enacted by PL 1989, c. 832, §4, is amended to read:
Sec. 5. 26 MRSA §682, sub-§§3-B to 3-E are enacted to read:
Sec. 6. 26 MRSA §682, sub-§4-A is enacted to read:
Sec. 7. 26 MRSA §682, sub-§6, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is repealed.
Sec. 8. 26 MRSA §682, sub-§§6-A to 6-C are enacted to read:
Sec. 9. 26 MRSA §682, sub-§7, as amended by PL 2009, c. 133, §1, is further amended to read:
(1) A screening test of an applicant's urine or saliva may be performed at the point of collection through the use of a noninstrumented point of collection test device approved by the federal Food and Drug Administration. Section 683, subsection 5-A governs the use of such tests.
Sec. 10. 26 MRSA §683, as amended by PL 2011, c. 657, Pt. AA, §72, is further amended to read:
§ 683. Testing procedures
No An employer may not require, request or suggest that any employee or applicant submit to a substance abuse use test except in compliance with this section. All actions taken under a substance abuse use testing program shall must comply with this subchapter, rules adopted under this subchapter and the employer's written uniform impairment and substance use testing policy approved under section 686 developed by the Department of Labor pursuant to subsection 2.
(1) Which positions, if any, will be 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 use 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 clothing.
(3) No An employee or applicant may not 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 use 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 use 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 , in mandated guidelines for federal workplace drug testing programs or in the protocols and levels established by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration;
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.
Any form or agreement prohibited by this subsection is void.
(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 use testing purposes nor may any employer conduct a substance abuse use 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.
(1) For a point of collection screening test that results in a preliminary positive or negative test result, the person performing the test shall release the test result to the employee who is the subject of the test immediately.
(2) For a point of collection screening test that results in a preliminary positive test result, the person performing the test may not release the test result to the employer until after the result of the confirmation test has been determined.
(3) For a point of collection screening test that results in a preliminary negative test result, the person performing the test may not release the test result to the employer until after the result of a confirmation test would have been determined if one had been performed.
(4) For a confirmation test, the person performing the test shall release the result immediately to the employee who is the subject of the test and to the employer.
(1) The laboratory possesses all licenses or certifications that the department finds necessary or desirable to ensure reliable and accurate test results;
(2) The laboratory follows proper quality control procedures, including, but not limited to:
(a) The use of internal quality controls during each substance abuse use test conducted under this subchapter, including the use of blind samples and samples of known concentrations which that are used to check the performance and calibration of testing equipment;
(b) The internal review and certification process for test results, including the qualifications of the person who performs that function in the testing laboratory; and
(c) Security measures implemented by the testing laboratory; and
(3) Other necessary and proper actions are taken to ensure reliable and accurate test results.
(1) The name of the laboratory that performed the test or tests;
(2) Any confirmed positive results on any tested sample.
(a) Unless the employee or applicant consents, test results shall may not be reported in numerical or quantitative form but shall must state only that the test result was positive or negative. This division does not apply if the test or the test results become the subject of any grievance procedure, administrative proceeding or civil action.
(b) A testing laboratory and the employer must shall ensure that an employee's unconfirmed positive screening test result cannot be determined by the employer in any manner, including, but not limited to, the method of billing the employer for the tests performed by the laboratory and the time within which results are provided to the employer. This division does not apply to test results for applicants;
(3) The sensitivity or cutoff level of the confirmation test; and
(4) Any available information concerning the margin of accuracy and precision of the test methods employed.
The report shall may not disclose the presence or absence of evidence of any physical or mental condition or of any substance other than the specific substances of abuse that the employer requested to be identified. A testing laboratory shall retain records of confirmed positive results in a numerical or quantitative form for at least 2 years.
Costs of a substance abuse use test administered at the request of an employee under subsection 5, paragraph B , shall must be paid:
Sec. 11. 26 MRSA §684, as amended by PL 2003, c. 547, §2, is further amended to read:
§ 684. Imposition of tests
The offer of employment or offer of a position on a roster of eligibility may be conditioned on the applicant receiving a negative test result.
(1) Information received from an anonymous informant; or
(2) Any information tending to indicate that an employee may have possessed or used a substance of abuse off duty, except when the employee is observed possessing or ingesting any substance of abuse while either on the employer's premises or in the proximity of the employer's premises during or immediately before the employee's working hours.
An occupational health care provider who makes or acts upon an impairment determination in accordance with this subsection is not subject to a cause of action as long as the determination is based on the occupational health care provider's good faith, professional judgment. An occupational health care provider may not be an employee or agent of, or have any financial interest in, a testing laboratory for which the occupational health care provider is reviewing drug test results. An occupational health care provider may not derive any financial benefit by having an employer use a laboratory that may be construed as a potential conflict of interest.
(1) An employer may establish a testing program under this paragraph only if the employer has 50 10 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.
(2-A) An employer may establish a random or arbitrary testing program under this paragraph if the employer is required to test employees to retain a contract. An employee may be allowed to sign a waiver exempting the employee from testing when required for a contract and the employee acknowledges that the employee may not have an opportunity to work under the contract for which testing is required.
(3) The written policy developed under subparagraph (2) 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.
(7) An arbitrary test may be conducted only on an employee whose job is of a nature that could pose a threat to the health or safety of the public or coworkers if the employee were impaired by a substance of abuse.
Sec. 12. 26 MRSA §685, as amended by PL 2003, c. 547, §3, is further amended to read:
§ 685. Action taken on substance use tests
Action taken by an employer on the basis of a substance abuse use test is limited as provided in this section.
(1) Refusal to hire an applicant for employment or refusal to place an applicant on a roster of eligibility;
(2) Discharge of an employee;
(3) Discipline of an employee; or
(4) Change in the employee's work assignment.
(1) If the employer has an employee assistance program that offers counseling or rehabilitation treatment services, the employee may choose to enter that program at the employer's expense with any costs not covered by the employer's portion of the employee assistance program to be paid by the employee unless the employer chooses to cover such costs. 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 treatment program.
(a) Except to the extent that costs are covered by a group health insurance plan, the costs of the public or private rehabilitation treatment program must be equally divided between the employer and employee if the employer has more than 20 full-time employees. 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 paid by the employee. The employer shall may assist in financing the cost share of the employee employee's costs 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 treatment program. An employer is not required to pay for the costs of rehabilitation treatment 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 An employer may not take any action described in paragraph A while an employee is participating in a rehabilitation treatment 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 treatment 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 treatment or while the employee is medically disqualified. The employee may apply normal sick leave and or vacation time leave, if any available, for these periods or available family medical leave for which the employee may qualify under state or federal law.
(2-A) A rehabilitation or treatment provider shall promptly notify the employer if the employee fails to comply with the prescribed rehabilitation treatment program before the expiration of the 6-month 12-week 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 treatment 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 test 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 treatment program within 6 4 months after starting the program, the employer may take any action described in paragraph A.
(a) If the employee who has completed rehabilitation treatment previously worked in an employment position subject to random or arbitrary testing under an employer's written policy, 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 test 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 treatment 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 as if the employee had successfully completed rehabilitation treatment on that date.
(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. 13. 26 MRSA §686, as amended by PL 2009, c. 133, §3, is further amended to read:
§ 686. Review of uniform impairment and substance use testing policy certification
Sec. 14. 26 MRSA §689, sub-§3, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
Sec. 15. 26 MRSA §689, sub-§5 is enacted to read:
Sec. 16. 26 MRSA §690, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
§ 690. Report
The Department of Labor shall report to the joint standing committee of the Legislature having jurisdiction over labor matters on March 1, 1990, and annually on that date thereafter. This report shall must:
Sec. 17. Maine Revised Statutes headnote amended; revision clause. In the Maine Revised Statutes, Title 26, chapter 7, subchapter 3-A, in the subchapter headnote, the words "substance abuse testing" are amended to read "substance use testing" and the Revisor of Statutes shall implement this revision when updating, publishing or republishing the statutes.
This bill makes changes to the laws governing employment practices concerning substance abuse testing, including the following.
1. It replaces the phrases "substance abuse test" and "substance abuse testing" with "substance use test" and "substance use testing" to reflect current usage.
2. It repeals a section of law that addresses nuclear power plants since there are no operating nuclear power plants in this State.
3. It narrows the definition of "employee" and provides that a full-time employee is an employee who works at least 36 hours a week.
4. It authorizes an employer that has employees subject to a federally mandated substance use testing program to extend federal drug testing activities to its entire workforce in order to maintain a single testing program and specifies that the employer must prepare a substance use testing plan for employees who are not federally regulated, provide a copy of the plan to the employees and the Department of Labor before testing, follow federal notification and procedural protocols for such employees and annually report the results of testing to the department.
5. It streamlines the current substance use testing policy approval by requiring the Department of Labor to develop a uniform impairment and substance use testing policy applicable to all employers. Employers must certify their adoption of the policy and be approved by the Department of Labor prior to conducting substance use testing.
6. It removes the "probable cause" standard and replaces it with an "impairment detection" standard required before the employer may conduct substance use testing. For employers authorized to conduct substance use testing, only an employer or employee approved for impairment detection by the Department of Labor or a licensed physician or nurse may make an impairment detection. This detection may be based on a single work-related accident, unlike the "probable cause" standard under current law. The employer may immediately remove the employee from the workplace pending resolution of the impairment detection.
7. It adds an "impairment determination" process that may be used as an alternative or in addition to a substance use test. Under this process, an occupational health care provider conducts a medical review in order to confirm the impairment detection, which may include a substance use test that includes testing for prescription drugs. If the impairment is confirmed, the employer may take employment action including firing or disciplining the employee, subject to any limitations under the Maine Human Rights Act and any other state or federal law. If the occupational health care provider finds that the employee was not impaired or that such impairment did not pose a safety risk, the employee is entitled to full reinstatement to the employee's position.
8. It adds a violation of an established drug-free workplace policy as grounds for employment action and provides for a treatment period of 12 weeks at the employee's expense.
9. It eliminates the requirement that, prior to establishing a substance use testing program, an employer with over 20 full-time employees have a functioning employee assistance program and instead authorizes employers to have an employee assistance program.
10. It expands the number of establishments that may undertake companywide random substance use testing by authorizing such testing for companies with 10 or more employees instead of with 50 or more employees, as is the current standard.
11. It provides that a confirmed positive substance use test may be reported to the employee only by a medical review officer and allows an employee to provide a legitimate medical explanation for a positive test result for legally obtained medications, preventing the medical review officer from reporting a positive test for that substance to the employer.
12. It allows testing laboratories to use federal testing standards.
13. It adds a new civil violation for any employer noncompliance with the substance use testing laws, for which a fine of not more than $500 for the first violation, $750 for the 2nd violation and $1,000 for the 3rd and subsequent violations may be adjudged.