PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney.
Amend the bill by striking out everything after the enacting clause and before the summary and inserting the following:
‘Sec. 1. 26 MRSA §681, as amended by PL 2011, c. 196, §1, is further amended to read:
§ 681.Purpose; applicability
 
1. Purpose.   This subchapter is intended to:
 
A. Protect the privacy rights of individual employees in the State from undue invasion by employers through the use of substance abuseuse tests while allowing the use of tests when the employer has a compelling reason to administer a test;
 
B. Ensure that, when substance abuseuse tests are used, proper test procedures are employed to protect the privacy rights of employees and applicants and to achieve reliable and accurate results;
 
C. Ensure that an employee with a substance abuse problem receives an opportunity for rehabilitation and treatment of the disease and returns to work as quickly as possible; and
 
D. Eliminate drug use in the workplace.; and
 
E.  Protect Maine workers from injuries and illnesses caused by impairment in the workplace.
 
2. Employer discretion.   This subchapter does not require or encourage employers to conduct substance abuseuse testing of employees or applicants. An employer who chooses to conduct such testing is limited by this subchapter, but may establish policies whichthat are supplemental to and not inconsistent with this subchapter.
 
3. Collective bargaining agreements.   This subchapter does not prevent the negotiation of collective bargaining agreements that provide greater protection to employees or applicants than is provided by this subchapter.
 
A labor organization with a collective bargaining agreement effective in the State may conduct a program of substance abuseuse 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.
 
4. Home rule authority preempted.  NoA municipality may not enact any ordinance under its home rule authority regulating an employer's use of substance abuseuse tests.
 
5. Contracts for work out of State.   All employment contracts subject to the laws of this State shallmust include an agreement that this subchapter will apply to any employer who hires employees to work outside the State.
 
6. Medical examinations.   This subchapter does not prevent an employer from requiring or performing medical examinations of employees or applicants or from conducting medical screenings to monitor exposure to toxic or other harmful substances in the workplace, provided thatas long as these examinations are not used to avoid the restrictions of this subchapter. No suchAn examination may not include the use of any substance abuseuse test except in compliance with this subchapter.
 
7. Other discipline unaffected.   This subchapter does not prevent an employer from establishing rules related to the possession or use of substances of abuse by employees, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules, except when a substance abuseuse test is required, requested or suggested by the employer or used as the basis for any disciplinary action.
 
8.  Nuclear power plants; federal law.     The following limitations apply to the application of this subchapter.
 
A.  This subchapter does not apply to nuclear electrical generating facilities and their employees, including independent contractors and employees of independent contractors who are working at nuclear electrical generating facilities.
 
C.  This subchapter does not apply to any employer subject to a federally mandated drug and alcohol testing program, including, but not limited to, testing mandated by the federal Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, Title V, and its employees, including independent contractors and employees of independent contractors who are working for or at the facilities of an employer who is subject to such a federally mandated drug and alcohol testing program.
 
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, an independent contractor or an employee of an independent contractor who is working for or at the facilities of an employer who is subject to a federally mandated drug and alcohol testing program.
 
B.  An employer with employees in this State who are subject to a federally mandated drug and alcohol testing program may either follow a substance use testing policy established in accordance with this subchapter or may choose not to follow this subchapter for substance use testing of employees who are not subject to federal testing requirements, in which case the employer shall:
 
(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 any 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:
 
1-A.  Arbitrary testing.     "Arbitrary testing" means substance use testing in which the frequency of testing and the selection of those being tested are based on a set event, including, but not limited to, an employment anniversary or promotion, or are based on client-required or site-specific testing, for example when a client requires testing prior to work on a project or specific site.
Sec. 3. 26 MRSA §682, sub-§3-A, as enacted by PL 1989, c. 832, §4, is amended to read:
 
3-A. Medically disqualified.   "Medically disqualified" means that an employee is prohibited by a federal law or regulation, or any rules adopted by the State's Department of Public Safety that incorporate any federal laws or regulations related to substance abuseuse testing for motor carriers, from continuing in the employee's former employment position due to the result of a substance abuseuse test conducted under the federal law or regulation or the Department of Public Safety rule.
Sec. 4.  26 MRSA §682, sub-§§3-B to 3-E  are enacted to read:
 
3-B.  Established drug-free workplace policy.     "Established drug-free workplace policy" means a substance use policy adopted by an employer who has certified to the Department of Labor that all affected employees have been notified of the policy and have had an opportunity to review the policy and its requirements.
 
3-C.  Fitness-for-duty evaluation.     "Fitness-for-duty evaluation" means an evaluation to determine whether an individual is in a physical, mental and emotional state that enables the employee to perform the essential tasks of that employee's work assignment in a manner that does not threaten the safety or health of the employee, coworkers or the public or damage to property.
 
3-D.  Impairment or impaired.     "Impairment" or "impaired" means any observed abnormality or change in an employee's physical, psychological or physiological condition or an event in the workplace that could reasonably lead to the conclusion that the employee may behave or perform tasks in a manner that threatens the safety of the employee, the employee's coworkers or any other individuals.
 
3-E.  Medical review officer.     "Medical review officer" means a licensed physician knowledgeable of, and with clinical experience in, controlled substance abuse disorders, deviations of substance use testing specimens and causes of invalid testing results, who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results. "Medical review officer" may include a person qualified to serve as a medical review officer under federal drug testing laws, as long as that person meets the requirements of this subsection.
Sec. 5.  26 MRSA §682, sub-§4-A  is enacted to read:
 
4-A.  Occupational health care provider.     "Occupational health care provider" means an occupational medicine specialist with a wide knowledge of clinical medicine who has competencies in areas such as employee work-related injury management, periodic regulatory medical evaluations for specific job roles, fitness-for-duty evaluations of non-work-related employee conditions and evaluation of other employment-related medical concerns. An occupational health care provider may be a physician, physician assistant or nurse practitioner or other similar medical professional trained in occupational health care. An occupational health care provider may have knowledge of the specific nature of the employment functions performed by employees for the specific employer.
Sec. 6. 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. 7.  26 MRSA §682, sub-§§6-A to 6-D  are enacted to read:
 
6-A.  Random testing.     "Random testing" means a method of selecting those to be tested in which all persons potentially to be tested have an equal probability of selection by chance.
 
6-B.  Return-to-work agreement.     "Return-to-work agreement" means a written document that sets forth the expectations that the employer and the employer's employee assistance program or a medical professional have of an employee who has completed mandated treatment for substance abuse problems. It also sets forth the consequences if the expectations are not met.
 
6-C.  Safety-sensitive task or occupation.     "Safety-sensitive task or occupation" means a work task or an employee occupation that, based on its nature, machinery, location, surroundings or influence upon other operations, could pose a threat to the safety of the employee, a coworker or others.
 
6-D.  Sampling and screening organization.     "Sampling and screening organization" means an entity that is hired by an employer to collect biological samples from employees and conduct screening tests for substances of abuse.
Sec. 8. 26 MRSA §682, sub-§7, as amended by PL 2009, c. 133, §1, is further amended to read:
 
7. Substance use test.   "Substance abuseuse test" means any test procedure designed to take and analyze body fluids or materials from the body for the purpose of detecting the presence of substances of abuse. The term does not include tests designed to determine blood-alcohol concentration levels from a sample of an individual's breath.
 
A. "Screening test" means an initial substance abuseuse test performed through the use of immunoassay technology or a federally recognized substance abuseuse 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 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.
 
B. "Confirmation test" means a 2nd substance abuseuse test that is used to verify the presence of a substance of abuse indicated by an initial positive screening test result and is a federally recognized substance abuseuse test or is performed through the use of liquid or gas chromatography-mass spectrometry.
 
C. "Federally recognized substance abuseuse test" means any substance abuseuse test recognized by the federal Food and Drug Administration as accurate and reliable through the administration's clearance or approval process, a substance use test conducted in accordance with mandated guidelines for federal workplace drug testing programs or a substance use test conducted according to protocols and levels established by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration.
Sec. 9. 26 MRSA §683, as amended by PL 2011, c. 657, Pt. AA, §72, is further amended to read:
§ 683.Testing procedures
NoAn employer may not require, request or suggest that any employee or applicant submit to a substance abuseuse test except in compliance with this section. All actions taken under a substance abuseuse testing program shallmust comply with this subchapter, rules adopted under this subchapter and the employer's writtenuniform impairment and substance use testing policy approved under section 686developed by the Department of Labor pursuant to subsection 2.
 
1. Employee assistance program required.   Before establishing any substance abuseuse testing program for employees, an employer with over 2050 full-time employees must have a functioning employee assistance program.
 
A. The employer may meet this requirement by participating in a cooperative employee assistance program that serves the employees of more than one employer.
 
B. The employee assistance program must be certified by the Department of Health and Human Services under rules adopted pursuant to section 687. The rules must ensure that the employee assistance programs have the necessary personnel, facilities and procedures to meet minimum standards of professionalism and effectiveness in assisting employees.
 
2. Uniform impairment and substance use testing 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 forOn or before January 1, 2017, the Department of Labor shall adopt by rule a uniform impairment and substance use testing policy for adoption by employers. Before establishing any new substance use testing program or reactivating an inactive substance use testing policy after January 1, 2017, an employer shall notify the department that it has adopted the uniform impairment and substance use testing policy as set forth in department rules and certify that it will carry out all substance use testing activities that are not regulated by the Federal Government in accordance with that policy. An employer with an active substance use testing policy approved prior to January 1, 2017 may continue to operate under that policy but shall certify to the department by no later than January 1, 2018 that the employer has adopted the uniform impairment and substance use testing policy. The uniform impairment and substance use testing policy developed by the department must provide, 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 abuseuse 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. TheFor the collection of samples.
 
(1) The collection of any sample for use in a substance abuseuse 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) NoAn 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 abuseuse 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. TheProcedures for 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 confirmed 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 abuseuse 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;
 
H. The consequences of a confirmed positive substance abuseuse test result;
 
I. The consequences for refusal to submit to a substance abuseuse 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.
 
3. Copies to employees and applicants.   The employer shall provide each employee with notice of, and an opportunity to review, a copy of the written policy approved by the Department of Labor under section 686uniform impairment and substance use testing policy at least 30 days before any portion of the written policy applicable to employees takes effect. The employer shall provide each employee with a copy of any change in a written policy approved by the Department of Labor under section 686 at least 60 days before any portion of the change applicable to employees takes effect. The Department of Labor may waive the 60-day notice for the implementation of an amendment covering employees if the amendment was necessary to comply with the law or if, in the judgment of the department, the amendment promotes the purpose of the law and does not lessen the protection of an individual employee. If an employer intends to test an applicant, the employer shall provide the applicant with an opportunity to review a copy of the writtenuniform policy under subsection 2 before administering a substance abuseuse test to the applicant. The 30-day and 60-day notice periodsperiod provided for employees under this subsection dodoes not apply to applicants.
 
4. Consent forms prohibited.   An employer may not require, request or suggest that any employee or applicant sign or agree to any form or agreement that attempts to:
 
A. Absolve the employer from any potential liability arising out of the imposition of the substance abuseuse test; or
 
B. Waive an employee's or applicant's rights or eliminate or diminish an employer's obligations under this subchapter except as provided in subsection 4-A.
 
Any form or agreement prohibited by this subsection is void.
 
4-A. Waivers for temporary employment.   An employment agency, as defined in section 611, may request a written waiver for a temporary placement from an individual already in its employ or on a roster of eligibility as long as the client company has an approvedadopted the uniform impairment and substance abuseuse testing policy in accordance with this subchapter and the individual has not been assigned work at the client company in the 30 days previous to the request. The waiver is only to allow a test that might not otherwise be allowed under this subchapter. The test must otherwise comply with the standards of this subchapter and the employment agency's approveduniform policy regarding applicant testing. The agency may not take adverse action against the individual for refusal to sign a waiver.
 
5. Right to obtain other samples.   At the request of the employee or applicant at the time the test sample is taken, the employer shall, at that time:
 
A. Segregate a portion of the sample for that person's own testing. Within 5 days after notice of the test result is given to the employee or applicant, the employee or applicant shall notify the employer of the testing laboratory selected by the employee or applicant. This laboratory must comply with the requirements of this section related to testing laboratories. When the employer receives notice of the employee or applicant's selection, the employer shall promptly send the segregated portion of the sample to the named testing laboratory, subject to the same chain of custody requirements applicable to testing of the employer's portion of the sample. The employee or applicant shall pay the costs of these tests. Payment for these tests may not be required earlier than when notice of the choice of laboratory is given to the employer; and
 
B. In the case of an employee, have a blood sample taken from the employee by a licensed physician, registered physician's assistant, registered nurse or a person certified by the Department of Health and Human Services to draw blood samples. The employer shall have this sample tested for the presence of alcohol or marijuana metabolites, if those substances are to be tested for under the employer's writtenuniform impairment and substance use testing policy. If the employee requests that a blood sample be taken as provided in this paragraph, the employer may not test any other sample from the employee for the presence of these substances.
 
(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) NoAn employer may not require, request or suggest that any employee or applicant provide a blood sample for substance abuseuse testing purposes nor may any employer conduct a substance abuseuse 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.
 
5-A. Point of collection screening test.   Except as provided in this subsection, all provisions of this subchapter regulating screening tests apply to noninstrumented point of collection test devices described in section 682, subsection 7, paragraph A, subparagraph (1).
 
A. A noninstrumented point of collection test described in section 682, subsection 7, paragraph A, subparagraph (1) may be performed at the point of collection rather than in a laboratory. Subsections 6 and 7 and subsection 8, paragraphs A to C do not apply to such screening tests. Subsection 5 applies only to a sample that results in a positive test result.
 
B. Any sample that results in a negative test result must be destroyed. Any sample that results in a postivepositive test result must be sent to a qualified testing laboratory consistent with subsections 6 to 8 for confirmation testing.
 
C. A person who performs a point of collection screening test or a confirmation test may release the results of that test only as follows.
 
(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.
 
6. Qualified testing laboratories required.  NoAn employer may not perform any substance abuseuse test administered to any of that employer's employees. An employer may perform screening tests administered to applicants if the employer's testing facilities comply with the requirements for testing laboratories under this subsection. Except as provided in subsection 5-A, any substance abuseuse test administered under this subchapter must be performed in a qualified testing laboratory that complies with this subsection.
 
B. The laboratory must have written testing procedures and procedures to ensure a clear chain of custody.
 
C. The laboratory must demonstrate satisfactory performance in the proficiency testing program of the National Institute on Drug Abuse, the College of American Pathology or the American Association for Clinical Chemistry.
 
D. The laboratory must comply with rules adopted by the Department of Health and Human Services under section 687. These rules shallmust ensure that:
 
(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 abuseuse test conducted under this subchapter, including the use of blind samples and samples of known concentrations whichthat 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.
 
7. Testing procedure.   A testing laboratory shall perform a screening test on each sample submitted by the employer for only those substances of abuse that the employer requests to be identified. If a screening test result is negative, no further test may be conducted on that sample. If a screening test result is positive, a confirmation test shallmust be performed on that sample. A testing laboratory shall retain all confirmed positive samples for one year in a manner that will inhibit deterioration of the samples and allow subsequent retesting. All other samples shallmust be disposed of immediately after testing.
 
8. Laboratory report of test results.   This subsection governs the reporting of test results.
 
A. A laboratory report of test results shallmust, at a minimum, state:
 
(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 shallmay not be reported in numerical or quantitative form but shallmust 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 mustshall 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 shallmay 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.
 
B. The employer shall promptly notify the employee or applicant tested of the test result. Upon request of an employee or applicant, the employer shall promptly provide a legible copy of the laboratory report to the employee or applicant. Within 3 working days after notice of a confirmed positive test result, the employee or applicant may submit information to the employer explaining or contesting the results.
 
C. The testing laboratory shall send test reports for samples segregated at an employee's or applicant's request under subsection 5, paragraph A, to both the employer and the employee or applicant tested.
 
D. Every employer whose uniform policy notification is approved by the Department of Labor under section 686 shall annually send to the department a compilation of the results of all substance abuseuse tests administered by that employer in the previous calendar year. This report shallmust provide separate categories for employees and applicants and shallmust be presented in statistical form so that no person who was tested by that employer can be identified from the report. The report shallmust include a separate category for any tests conducted on a random or arbitrary basis under section 684, subsection 3.
 
E.  Any laboratory-confirmed positive substance use test results must be reported to a medical review officer. The medical review officer may be directly or indirectly retained by the employer, but shall act independently in carrying out any testing reviews or recommendations. The medical review officer shall contact the employee and, if necessary, the employee's physician to review each confirmed positive substance use test or any test found to be adulterated, substituted or otherwise invalid to determine whether there is, in the opinion of the medical review officer, a legitimate medical explanation for the result. Any exchange between the employee and the medical review officer is not subject to doctor-patient relationship confidentiality, although the medical review officer shall protect the confidentiality of the drug testing information as otherwise provided in this chapter. The medical review officer may not disclose the presence or absence of any physical or mental condition of the employee, the presence or absence of any substances other than those allowed to be tested for under Department of Health and Human Services laboratory testing rules or the presence or absence of any substance for which there is a legitimate medical explanation.
 
9. Costs.   The employer shall pay the costs of all substance abuseuse tests to which the employer requires, requests or suggests that an employee or applicant submit. Except as provided in paragraph A, the employee or applicant shall pay the costs of any additional substance abuseuse tests.
 
Costs of a substance abuseuse test administered at the request of an employee under subsection 5, paragraph B, shallmust be paid:
 
A. By the employer if the test results are negative for all substances of abuse tested for in the sample; and
 
B. By the employee if the test results in a confirmed positive result for any of the substances of abuse tested for in the sample.
 
10. Limitation on use of tests.   An employer may administer substance abuseuse tests to employees or applicants only for the purpose of discovering the use of any substance of abuse likely to cause impairment of the user or the use of any scheduled drug. NoAn employer may not have substance abuseuse tests administered to an employee or applicant for the purpose of discovering any other information.
 
11. Rules.   The Department of Health and Human Services shall adopt any rules under section 687 regulating substance abuseuse testing procedures that it finds necessary or desirable to ensure accurate and reliable substance abuseuse testing and to protect the privacy rights of employees and applicants.
Sec. 10. 26 MRSA §684, as amended by PL 2003, c. 547, §2, is further amended to read:
§ 684.Imposition of tests
 
1. Testing of applicants.   An employer may require, request or suggest that an applicant submit to a substance abuseuse test only if:
 
A. The applicant has been offered employment with the employer; or
 
B. The applicant has been offered a position on a roster of eligibility from which applicants will be selected for employment. The number of persons on this roster of eligibility may not exceed the number of applicants hired by that employer in the preceding 6 months.
 
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.
 
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.
 
2-A.  Impairment detection required; testing of employees.     An employer may require, request or suggest that an employee submit to a substance use test, an impairment determination by an occupational health care provider, or both, only if the employer has made an impairment detection regarding the employee pursuant to this subsection.
 
A.  Only supervisory, human resources or security personnel approved for impairment detection by the Department of Labor or a licensed physician or nurse may make an impairment detection regarding an individual employee.
 
B.  The person making the impairment detection shall state in writing, on a form provided by the department, the facts upon which the detection is based, and provide a copy of the completed form to the employee as soon as possible but no later than 24 hours from the time the detection is made. The completed impairment detection form must be provided to the employee prior to any substance use testing of that employee.
 
C.  At least 2 weeks prior to conducting any impairment detection activities under this subsection, the employer must provide the department with a list of all positions subject to impairment detection activities and notify employees by posting that list in a location accessible to all employees. The employer may amend the list as long as, at least 2 weeks prior to any impairment detection activities, employees whose positions are being added to the list are notified of their inclusion on the list, the amended list is posted in a location accessible to employees and the amended list is submitted to the department.
 
D.  Subject to any limitation of the Maine Human Rights Act or any other state or federal law, there may be no cause of action against an employer for making and acting upon impairment detection in accordance with this subsection as long as the completed impairment detection form is provided to the employee and the impairment detection is based on the employer's good faith belief that the employee was impaired at work.
 
E.  An impairment detection may not be based exclusively on:
 
(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 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.
 
2-B.  Impairment determination; temporary removal.     If an impairment detection is made, the employer may immediately remove the employee, or temporary employee, from the workplace pending resolution of the impairment detection.
 
A.  Any impairment detection must be confirmed through a medical review by an occupational health care provider prior to any further action by the employer based on the impairment determination. The occupational health care provider may require that the employee submit to testing for substances of abuse, including prescription medications, to assist in investigating and confirming the impairment detection. The occupational health care provider may perform a fitness-for-duty evaluation of the employee. The occupational health care provider may direct the employee to obtain further medical evaluation either by the employee's physician or by another licensed physician acceptable to the occupational health care provider.
 
B.  Any substance use testing subsequent to an impairment detection confirmation must be done by an independent testing facility and all screening and confirmatory test results must be delivered to the medical review officer for review according to section 683, subsection 8, paragraph E. The medical review officer shall provide the results to the occupational health care provider and may not provide the results to the employer. When an employer is using a substance use test only, the medical review officer shall provide the results to the employer. Prescription medications may be tested for only when impairment detection has been made, and only for the purpose of assisting the occupational health care provider in evaluating whether an employee is impaired and the cause of the impairment.
 
C.  The occupational health care provider shall make the final determination of whether an employee was or is impaired, identify the cause of any impairment, determine whether the employee can continue to perform any safety-sensitive tasks and determine the impairment remediation program, if any, necessary to ensure that the impairment will not recur or will not adversely affect the safety of the employee, coworkers and other persons at the work site in the future. The occupational health care provider may also make further recommendations regarding the employee's ability to safely perform all assigned tasks, including requiring any remedial measures, including, but not limited to, compliance with return-to-work agreements or a written agreement by the employee to schedule any necessary medications in a manner that will not lead to impairment on the job. A return-to-work agreement may be used if an employee has violated the drug-free workplace policy and has been provided the opportunity to participate in treatment as a condition of continued employment or reemployment.
 
D.  If the occupational health care provider finds that the employee was not impaired on the job or that any such impairment did not pose a safety risk and did not violate the employer's established drug-free workplace policy, the employer shall reinstate the employee to the employee's position.
 
E.  If an impairment detection is made at a time when an occupational health care provider is not normally available for work, the employer may take any steps to remove the employee, and, prior to the employee's next scheduled work day, the employer may determine whether to allow the employee to return to work or to request an impairment determination or fitness-for-duty evaluation by the occupational health care provider.
 
F.  An occupational health care provider who makes or acts upon an impairment determination in accordance with this section 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.
 
3. Random or arbitrary testing of employees.  In addition to testing employees on a probable cause basis under subsection 2, anAn employer may require, request or suggest that an employee submit to a substance abuseuse 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 unreasonablecould pose a threat to the health or safety of the public or the employee's coworkers if the employee were under the influence ofimpaired by 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 5010 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 under the influence of a substance of abuse.
 
4. Testing while undergoing treatment.   While the employee is participating in a substance abuse rehabilitationtreatment program either as a result of voluntary contact with or mandatory referral to the employer's employee assistance program or after a confirmed positive result as provided in section 685, subsection 2, paragraphs B and C, substance abuseuse testing may be conducted by the rehabilitation or treatment provider as required, requested or suggested by that provider.
 
A. Substance abuseuse testing conducted as part of such a rehabilitation or treatment program is not subject to the provisions of this subchapter regulating substance abuseuse testing.
 
B. An employer may not require, request or suggest that any substance abuseuse test be administered to any employee while the employee is undergoing such rehabilitation or treatment, except as provided in subsections 22-A and 3.
 
C. The results of any substance abuseuse test administered to an employee as part of such a rehabilitation or treatment program may not be released to the employer.
 
5. Testing upon return to work.   If an employee who has received a confirmed positive result returns to work with the same employer, whether or not the employee has participated in a rehabilitationtreatment program under section 685, subsection 2, the employer may require, request or suggest that the employee submit to a subsequent substance abuseuse test anytime between 90 days and one year after the date of the employee's prior test. A test may be administered under this subsection in addition to any tests conducted under subsections 22-A and 3. An employer may require, request or suggest that an employee submit to a substance abuseuse test during the first 90 days after the date of the employee's prior test only as provided in subsections 22-A and 3.
Sec. 11. 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 abuseuse test is limited as provided in this section.
 
1. Before receipt of test results.   An employer may suspend an employee with full pay and benefits or may transfer the employee to another position with no reduction in pay or benefits while awaiting an employee's test results.
 
2. Use of confirmation test results.   This subsection governs an employer's use of confirmed positive results and an employee's or applicant's refusal to submit to a test requested or required by an employer in compliance with this subchapter.
 
A. Subject to any limitation of the Maine Human Rights Act or any other state law or federal law,and to provisions in this subsection, an employer may use a confirmed positive test result orfor a substance of abuse, refusal to submit to a substance use test, a violation of an established drug-free workplace policy or an impairment confirmed by an occupational health care provider pursuant to section 684, subsection 2-B as a factor in any of the following decisions:
 
(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.
 
A-1. An employer who tests a person as an applicant and employs that person prior to receiving the test result may take no action on a confirmed positive result except in accordance with the employee provisions of the employer's approveduniform impairment and substance use testing policy.
 
B. Before taking any action described in paragraph A in the case of an employee who receives an initial confirmed positive result, an employer shall provide the employee with an opportunity to participate for up to 6 months12 weeks in a rehabilitationtreatment program designed to enable the employee to avoid future use of a substance of abuse and to participate in an employee assistance program, if the employer has such a program. A confirmed impairment under section 684, subsection 2-B caused by a substance of abuse is the same as an initial confirmed positive result for purposes of this paragraph, with or without a substance use test result. A treatment program under this paragraph may be provided by an occupational health care provider. Participation by an employee in a treatment program must begin within 30 days of the employee's receiving notice of the positive test result or confirmed impairment, unless otherwise agreed to by the employer. The employer may take any action described in paragraph A if the employee receives a subsequent confirmed positive result from a substance use test administered by the employer under this subchapter or the employee receives a subsequent confirmed impairment caused by a substance of abuse with or without a substance use test.
 
C. If the employee chooses not to participate in a rehabilitationtreatment program under this subsection, the employer may take any action described in paragraph A. If the employee chooses to participate in a rehabilitationtreatment program, the following provisions apply.
 
(1) If the employer has an employee assistance program that offers counseling or rehabilitationtreatment 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 rehabilitationtreatment program.
 
(a) Except to the extent that costs are covered by a group health insurance plan, the costs of the public or private rehabilitationtreatment program, if required by the employer, must be equally divided between the employer and employee if the employer has more than 2050 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, theThe employer shallmay 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 2050 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 rehabilitationtreatment program. An employer is not required to pay for the costs of rehabilitationtreatment 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) NoAn employer may not take any action described in paragraph A while an employee is participating in a rehabilitationtreatment 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 rehabilitationtreatment program, providedexcept that the employer is not required to pay the employee for periods in which the employee is unavailable for work for the purposes of rehabilitationtreatment 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 rehabilitationtreatment program before the expiration of the 6-month12-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 rehabilitationtreatment 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 mustmay 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 rehabilitationtreatment 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 rehabilitationtreatment 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 shallmust 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 rehabilitationtreatment 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 rehabilitationtreatment on that date.
 
D. This subsection does not require an employer to take any disciplinary action against an employee who refuses to submit to a test, receives a single or repeated confirmed positive result or does not choose to participate in a rehabilitationtreatment program. This subsection is intended to set minimum opportunities for an employee with a substance abuse problem to address the problem through rehabilitationtreatment. An employer may offer additional opportunities, not otherwise in violation of this subchapter, for rehabilitationtreatment or continued employment without rehabilitationtreatment.
 
3. Confidentiality.   This subsection governs the use of information acquired by an employer in the testing process.
 
A. Unless the employee or applicant consents, all information acquired by an employer in the testing process is confidential and may not be released to any person other than the employee or applicant who is tested, any necessary personnel of the employer and a provider of rehabilitation or treatment services under subsection 2, paragraph C. This paragraph does not prevent:
 
(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.
 
B. Notwithstanding any other law, the results of any substance abuseuse test required, requested or suggested by any employer may not be used in any criminal proceeding.
Sec. 12. 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 notifications
 
1. Review required.   The Department of Labor shall review each written policy or change to an approvednotification of adoption of the uniform impairment and substance use testing policy submitted to the department by an employer under section 683, subsection 2.
 
A. The department shall determine if the employer's written policy or change complies with this subchapter and shall immediately notify the employer who submitted the policy or change of that determinationnotification of adoption of the uniform impairment and substance use testing policy is complete. If the department finds that the policy or change does not comply with this subchapteremployer's notification is incomplete, the department shall also notify the employer of the specific areas in which the policy or change is defectivedefects. If the employer's notification is determined to be complete, the department shall approve the conducting of substance use testing by the employer in accordance with this subchapter and shall notify the employer.
 
B.  The department may request additional information from an employer when necessary to determine whether an employment position meets the requirements of section 684, subsection 3. The department shall not approve any written policy that provides for random or arbitrary testing of any employment position that the employer has failed to demonstrate meets the requirements of section 684, subsection 3.
 
C. The department shall allow for the use of any federally recognized substance abuseuse test.
 
2. Review procedure.   The Department of Labor shall adopt rules under section 687 governing the procedure for reviews conducted under this section.
 
A. The rules must provide for notice to be given to the employees of any employer who submits a writtennotification of adoption of the uniform impairment and substance use testing policy or an amendment applicable to employees to the department for review under this section. The employees may submit written comments to the department challenging any portion of the employer's written policy, including the proposed designation of any position under section 684, subsection 3, paragraph B.
 
B. Nothing in this section requires a formal hearing to be held concerning the submission and review of an employer's writtennotification of adoption of the uniform impairment and substance use testing policy.
 
C. Notwithstanding Title 5, section 8003, the Maine Administrative Procedure Act, Title 5, chapter 375, does not apply to reviews conducted under this section except that all determinations by the Department of Labor under this section may be appealed as provided in Title 5, chapter 375, subchapter VII7.
 
D. The rules may establish model applicant policies and employee probable cause policies and provide for expedited approval and registration for employers adopting such model policiesthe uniform impairment and substance use testing policy. The rules adopted under this paragraph are routine technical rules pursuant to Title 5, chapter 375, subchapter II-A2-A.
Sec. 13. 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:
 
3. Harassment.   In addition to the liability imposed under subsection 1, any employer who requires or repeatedly attempts to require an employee or applicant to submit to a substance abuseuse test under conditions that would not justify the test under this subchapter or who without substantial justification repeatedly requires an employee to submit to a substance abuseuse test under section 684, subsection 3:
 
A. Is subject to a civil penalty not to exceed $1,000, payable to the affected employee, to be recovered in a civil action; and
 
B. For any subsequent offense against the same employee, is subject to a civil penalty of $2,000, payable to the affected employee, to be recovered in a civil action.
Sec. 14.  26 MRSA §689, sub-§5  is enacted to read:
 
5.  Civil violation.     In addition to the other remedies provided in this section, an employer who does not comply with this subchapter commits a civil violation for which the following fines may be adjudged.
 
A.  For the first violation, not more than $500;
 
B.  For the 2nd violation, not more than $750; and
 
C.  For a 3rd violation, and each subsequent violation, not more than $1,000.
Sec. 15. 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 shallmust:
 
1. List of employers.   List those employers whose substance abuseuse testing policies have been approved by the Department of Labor under section 686;
 
2. Persons tested.   Indicate whether those employers listed under subsection 1 are testing applicants or employees, or both;
 
3. Random or arbitrary testing.   Indicate those employers whose substance abuseuse testing policies permit random or arbitrary testing under section 684, subsection 3, and describe the employment positions subject to such random or arbitrary testing;
 
4. Results.   Provide statistical data relating to the reports received from employers indicating the number of substance abuseuse tests administered by those employers in the previous calendar year and the results of those tests; and
 
5. Description.   Briefly describe the general scope and practice of workplace substance abuseuse testing in the State.
Sec. 16. 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.’
 
SUMMARY
This amendment, which is the minority report of the committee, replaces the bill and makes changes to the laws governing employment practices concerning substance abuse testing, including the following.
1. It replaces the phrase "substance abuse test" and "substance abuse testing" with "substance use test" and "substance use testing" to reflect more modern terminology.
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 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.
4. It streamlines the current drug 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 notify, and be approved by, the Department of Labor prior to conducting substance use testing.
5. 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 medical person may make an impairment detection. Among other things, 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.
6. 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 of the employee's position.
7. It adds a violation of an established drug-free workplace policy as grounds for employment action;
8. It adds a first impairment determination to the requirement, applicable to an initial confirmed positive substance use test, that the employer must provide the employee with an opportunity to participate in a treatment program before discharging or disciplining the employee. The time frame for completing the treatment program is reduced from 6 months to 12 weeks, and an employer with between 20 and 50 full-time employees is no longer required to pay half of the costs of the treatment program. An employer with more than 50 full-time employees must pay half of treatment costs not covered by a group health insurance plan when the treatment program is required of the employee.
9. It modifies the current requirement that, prior to establishing a substance use testing program, an employer with over 20 full-time employees have a functioning employee assistance program, instead requiring the program of employers with over 50 full-time employees.
10. It expands the number of establishments that may undertake company-wide random substance abuse testing by authorizing such testing companies with 10 or more employees instead of with 50 employees, as is the current standard.
11. It provides that all confirmed positive substance use tests 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 to encourage testing of biological samples beyond urine and blood.
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 3rd and subsequent violations may be adjudged.
FISCAL NOTE REQUIRED
(See attached)