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An Act To Improve Workplace Safety by Simplifying and Improving Employers' Substance Abuse Policy Requirements
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 26 MRSA §681, sub-§7, as enacted by PL 1989, c. 536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to read:
 
7. Other discipline unaffected.   This subchapter does not prevent an employer from establishing policies or rules related to the possession or use of substances of abuse by employees, including impairment by substances of abuse of the employee at the workplace and convictions for drug-related offenses, and taking action based upon a violation of any of those policies or rules, except when a substance abuse test is required, requested or suggested by the employer or used as the basis for any disciplinary action.
Sec. 2. 26 MRSA §681, sub-§8, as amended by PL 2011, c. 196, §1, is repealed.
Sec. 3.  26 MRSA §681, sub-§10  is enacted to read:
 
10.  Federally mandated drug and alcohol testing programs.     The following limitations apply to the application of this subchapter.
 
A.  This subchapter does not apply to an employee, independent contractor or employee of an independent contractor who is subject to a federally mandated drug and alcohol testing program.
 
B.  If an employer has an employee who is subject to a federally mandated drug and alcohol testing program, this subchapter does not apply to that employer's substance abuse testing activities related to an employee who is not subject to federal testing requirements as long as:
 
(1) Sample collection standards of section 683, subsection 2, paragraph C are followed for an employee who is not subject to federal testing requirements;
 
(2) The employer otherwise follows the corresponding federal notification provisions, procedural protocols and standards for substance abuse testing of an employee who is not subject to federal testing requirements; and
 
(3) The employer meets any relevant reporting requirements for the substance abuse testing of an employee who is not subject to federal testing requirements.
Sec. 4. 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:
 
6. Probable cause.   "Probable cause" means a reasonable ground for belief in the existence of facts that induce a person to believe that an employee may be under the influence of a substance of abuse, provided that the. The existence of probable cause may be based on a single work-related accident that results in personal injury or significant damage to property, as "significant damage" is defined in the employer's policy governing substance abuse testing, approved in accordance with section 683, subsection 2. The existence of probable cause may not be based exclusively on any of the following:
 
A. Information received from an anonymous informant; or
 
B. 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 either while on the employer's premises or in the proximity of the employer's premises during or immediately before the employee's working hours; or.
 
C.  A single work-related accident.
Sec. 5. 26 MRSA §682, sub-§7, ¶A, as amended by PL 2009, c. 133, §1, is further amended to read:
 
A. "Screening test" means an initial substance abuse test performed through the use of immunoassay technology or a federally recognized substance abuse test, or a test technology of similar or greater accuracy and reliability approved by the Department of Health and Human Services under rules adopted under section 687, and that is used as a preliminary step in detecting the presence of substances of abuse.
 
(1) A screening test of an applicant's or employee'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. 6. 26 MRSA §683, sub-§1, as amended by PL 2011, c. 657, Pt. AA, §72, is repealed.
Sec. 7.  26 MRSA §683, sub-§1-A  is enacted to read:
 
1-A.  Employee assistance program.     An employer may have but is not required to have an employee assistance program established before establishing a substance abuse testing program for employees. If an employer elects to provide an employee assistance program, the employer may participate in a cooperative employee assistance program that serves the employees of more than one employer.
Sec. 8. 26 MRSA §683, sub-§2, as amended by PL 2009, c. 133, §2, is further amended to read:
 
2. Written policy.   Before establishing any substance abuse testing program, an employer must develop or, as required in section 684, subsection 3, paragraph C, must appoint an employee committee to develop a written policy in compliance with this subchapter providing for, at a minimum:
 
A. The procedure and consequences of an employee's voluntary admission of a substance abuse problem and any available assistance, including the availability and procedure of the employer's employee assistance program;
 
B. When substance abuse testing may occur. The written policy must describe:
 
(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;
 
C. The collection of samples.
 
(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 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;
 
D. The storage of samples before testing sufficient to inhibit deterioration of the sample;
 
E. The chain of custody of samples sufficient to protect the sample from tampering and to verify the identity of each sample and test result;
 
F. The substances of abuse to be tested for;
 
G. The cutoff levels for both screening and confirmation tests at which the presence of a substance of abuse in a sample is considered a positive test result.
 
(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;
 
H. The consequences of a confirmed positive substance abuse test result;
 
I. The consequences for refusal to submit to a substance abuse test;
 
J. Opportunities and procedures for rehabilitation following a confirmed positive result;
 
K. A procedure under which an employee or applicant who receives a confirmed positive result may appeal and contest the accuracy of that result. The policy must include a mechanism that provides an opportunity to appeal at no cost to the appellant; and
 
L. Any other matters required by rules adopted by the Department of Labor under section 687.
 
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.
 
The Commissioner of Labor shall develop model substance abuse policy templates to provide to employers in the State to use in developing policies pursuant to this subsection. The commissioner shall ensure that the templates, which must be made available in an electronic form, provide employers adequate flexibility so as to facilitate the ability of the employers' substance abuse testing programs and policies to meet the requirements of this subchapter.
Sec. 9. 26 MRSA §684, sub-§2, as amended by PL 1989, c. 832, §10, is further amended to read:
 
2. Probable cause testing of employees.   An employer may require, request or suggest that an employee submit to a substance abuse test if the employer has probable cause to test the employee.
 
A. The employee's immediate supervisor, other supervisory personnel, a licensed physician or nurse, or the employer's security personnel shall make the determination of probable cause.
 
B. The supervisor or other person must state, in writing, the facts upon which this determination is based and provide a copy of the statement to the employee.
Sec. 10. 26 MRSA §684, sub-§3, as amended by PL 2003, c. 547, §2, is further amended to read:
 
3. Random or arbitrary testing of employees.   In addition to testing employees on a probable cause basis under subsection 2, an employer may require, request or suggest that an employee submit to a substance abuse test on a random or arbitrary basis if:
 
A. The employer and the employee have bargained for provisions in a collective bargaining agreement, either before or after the effective date of this subchapter, that provide for random or arbitrary testing of employees. A random or arbitrary testing program that would result from implementation of an employer's last best offer is not considered a provision bargained for in a collective bargaining agreement for purposes of this section;
 
B. The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee's coworkers if the employee were under the influence of a substance of abuse. It is the intent of the Legislature that the requirements of this paragraph be narrowly construed; or
 
C. The employer has established a random or arbitrary testing program under this paragraph that applies to all employees, except as provided in subparagraph (4), regardless of position.
 
(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.
 
(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.
Sec. 11. 26 MRSA §685, sub-§2, ¶C, as amended by PL 1995, c. 344, §1, is further amended to read:
 
C. If the employee chooses not to participate in a rehabilitation program under this subsection, the employer may take any action described in paragraph A. If the employee chooses to participate in a rehabilitation program, the following provisions apply.
 
(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 and are not required or agreed upon by the employer, 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. 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 are the responsibility of the employee. Rehabilitation costs otherwise incurred that are not covered by group health insurance are the responsibility of the employee, except that nothing in this division precludes an employer from contributing to the cost of such rehabilitation if the employer elects to do so. The employer shall may 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 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 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 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 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 as if the employee had successfully completed rehabilitation on that date.
 
SUMMARY
This bill makes the following changes to the laws governing employment practices concerning substance abuse testing.
1. It specifies that employers may establish policies or rules related to the possession or use of substances of abuse by employees and for employee impairment by substances of abuse at the workplace.
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 authorizes an employer that has employees subject to a federally mandated substance abuse testing program to extend its federal drug testing activities to its entire workforce in order to maintain a single testing program and specifies that the employer must maintain the privacy protections that Maine statute affords all other Maine employees.
4. Current law prohibits a single work-related accident from forming the basis of probable cause to believe that an employee may be under the influence of a substance of abuse. This bill amends the law to provide that a single work-related accident that results in injury or significant property damage may be probable cause to suspect an employee is under the influence of a substance of abuse.
5. It eliminates the current requirement that, prior to establishing a substance abuse testing program, an employer with over 20 full-time employees have a functioning employee assistance program.
6. It directs the Commissioner of Labor to develop model policy templates with adequate flexibility so as to facilitate the ability of the employers’ substance abuse testing programs and policies to meet the requirements of the Maine Revised Statutes, Title 26, chapter 7, subchapter 3-A to develop new policies or update existing policies.
7. It expands the number of establishments that can undertake companywide random substance abuse testing from those with 50 or more employees to those with 10 or more employees.
8. The bill eliminates the requirement that employers share an employee's rehabilitation costs not covered by group health insurance and clarifies that rehabilitation costs not covered by a group health insurance program are the responsibility of the employee.
9. It specifies that testing at the point of collection of saliva or urine is permissible for both applicants for employment and for employees.