§684. Imposition of tests
1.
Testing of applicants.
An employer may require, request or suggest that an applicant submit to a substance use test only if:
A.
The applicant has been offered employment with the employer; or
[PL 1989, c. 536, §§1, 2 (NEW); PL 1989, c. 604, §§2, 3 (AFF).]
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.
[PL 1989, c. 536, §§1, 2 (NEW); PL 1989, c. 536, §§2, 3 (AFF).]
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.
[PL 2017, c. 407, Pt. A, §108 (AMD).]
2.
Reasonable suspicion testing of employees.
An employer may require, request or suggest that an employee submit to a substance use test if the employer has reasonable suspicion to believe that, based on observable behaviors, the employee may be impaired.
A.
The employee's immediate supervisor, other supervisory personnel, a licensed physician or nurse or the employer's security personnel must make the determination of reasonable suspicion.
[PL 2025, c. 666, §27 (AMD).]
B.
The supervisor or other person must state, in writing, the facts upon which the determination made under paragraph A is based and provide a copy of the statement to the employee prior to the test's being conducted.
[PL 2025, c. 666, §27 (AMD).]
[PL 2025, c. 666, §27 (AMD).]
3.
Random or criteria-based testing of employees.
In addition to testing employees on a reasonable suspicion basis under subsection 2, an employer may require, request or suggest that an employee submit to a substance use test on a random or criteria-based basis if:
A.
The employer and the employee have bargained for provisions in a collective bargaining agreement, either before or after September 30, 1989, that provide for random or criteria-based testing of employees. A random or criteria-based 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;
[PL 2025, c. 666, §28 (AMD).]
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. It is the intent of the Legislature that the requirements of this paragraph be narrowly construed; or
[PL 2017, c. 407, Pt. A, §108 (AMD).]
C.
The employer has established a random or criteria-based testing program under this paragraph that applies to all employees, except as provided in subparagraph (4), regardless of position.
[PL 2025, c. 666, §28 (AMD).]
(1)
An employer may establish a testing program under this paragraph only if the employer has 50 or more employees who are not covered by a collective bargaining agreement.
(2-A)
An employer may establish a testing program under this paragraph if the employer is required to test employees to retain a contract.
(3)
The written policy required by section 683, subsection 2 must 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 shall obtain from the Department of Labor approval of the policy, as required in section 686.
[PL 2025, c. 666, §28 (AMD).]
4.
Testing while undergoing rehabilitation or treatment.
While the employee is participating in a substance use rehabilitation 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 use testing may be conducted by the rehabilitation or treatment provider as required, requested or suggested by that provider.
A.
Substance use testing conducted as part of such a rehabilitation or treatment program is not subject to the provisions of this subchapter regulating substance use testing.
[PL 2017, c. 407, Pt. A, §108 (AMD).]
B.
An employer may not require, request or suggest that any substance use test be administered to any employee while the employee is undergoing such rehabilitation or treatment, except as provided in subsections 2 and 3.
[PL 2017, c. 407, Pt. A, §108 (AMD).]
C.
The results of any substance use test administered to an employee as part of such a rehabilitation or treatment program may not be released to the employer.
[PL 2017, c. 407, Pt. A, §108 (AMD).]
[PL 2017, c. 407, Pt. A, §108 (AMD).]
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 rehabilitation program under section 685, subsection 2, the employer may require, request or suggest that the employee submit to one unannounced subsequent substance use 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 2 and 3. An employer may require, request or suggest that an employee submit to a substance use test during the first 90 days after the date of the employee's prior test only as provided in subsections 2 and 3.
[PL 2025, c. 666, §29 (AMD).]
SECTION HISTORY
PL 1989, c. 536, §§1,2 (NEW). PL 1989, c. 604, §§2,3 (AMD). PL 1989, c. 832, §§10,11 (AMD). PL 2001, c. 706, §1 (AMD). PL 2003, c. 547, §2 (AMD). PL 2017, c. 407, Pt. A, §108 (AMD). PL 2025, c. 666, §§27-29 (AMD).