H.326
Introduced by Representatives Mazur of South Burlington, Atkins of Winooski, Blanchard of Essex, Buckland of Newport Town, Edwards of Swanton, Flaherty of South Burlington, Flory of Pittsford, Follett of Springfield, Gretkowski of Burlington, Hube of Londonderry, Little of Shelburne, McNamara of Burlington, Morrissey of Bennington, Perry of Richford, Richardson of Weathersfield, Starr of Troy, Vinton of Colchester, Wheeler of Burlington and Young of Orwell
Referred to Committee on
Date:
Subject: Labor; drug and alcohol testing; substance-free workplace program; workers00 compensation
Statement of purpose: This bill proposes to deter the use of drugs and alcohol in the workplace by establishing a substance-free workplace program pursuant to which an employer may require substance testing of employees and an employee who refuses testing or has a positive test may be denied workers00compensation benefits.
AN ACT RELATING TO DRUG AND ALCOHOL TESTING IN THE WORKPLACE AND WORKERS00COMPENSATION
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. REPEAL
21 V.S.A. 搂搂 511 through 520 (Subchapter 11. Drug Testing) are repealed.
Sec. 2. 21 V.S.A. chapter 5, subchapter 12 is added to read:
Subchapter 12. Substance-Free Workplace
搂 521. DEFINITIONS
As used in this subchapter,
(1) 00lcohol00means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.
(2) 00pplicant for employment00means an individual seeking or being sought for employment with an employer.
(3) 00hain of custody00means the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials, specimens, or substances, and reporting test results.
(4) 00onfirmation test,0000onfirmed test,00or 00onfirmed substance abuse test00means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen which is different in scientific principle from that of an initial test procedure, except in the case of alcohol breath testing, and which is capable of providing requisite specificity, sensitivity, and quantitative accuracy.
(5) 00esignated laboratory00means a laboratory designated by the department of health under section 527 of this title.
(6) 00rug00means a drug listed or classified by the United States Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol. It shall also mean other drugs or their metabolites which are likely to cause impairment of the individual on the job, which are: amitriptyline, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, doxepin, glutethimide, hydromorphone, imipramine, meperidine, methadone, methaqualone, opiates, oxycodone, pentazocine, phenytoin, phencyclidine, phenothiazines, and propoxyphene. In addition, the commissioner of health may, by rule, pursuant to chapter 25 of Title 3, add drugs to this list which the commissioner determines may be commonly abused and likely to cause impairment of the employee on the job.
(7) 00rug test00means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a regulated drug as defined in chapter 84 of Title 18 or a drug as defined in subdivision (6) of this section, and alcohol.
(8) 00mployee00means any person who may be permitted, required or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
(9) 00mployee assistance program00means an established program for employee assessment, counseling, and possible referral to an alcohol and drug rehabilitation program.
(10) 00mployer00means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state, or which has offered or may offer employment to one or more individuals.
(11) 00nitial test00means a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens, which uses an immunoassay procedure or an equivalent procedure or a more accurate scientifically accepted method approved by the National Institute on Drug Abuse in a cost-effective form.
(12) 00onprescription medication00means a drug or medication authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries.
(13) 00rescription medication00means a drug or medication lawfully prescribed by a physician for an individual and taken in accordance with such prescription.
(14) 00easonable suspicion testing00means substance abuse testing based on a belief that an employee is using or has used a substance in violation of the employer00 policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Such facts and inferences may include the following:
(A) Observable phenomena while at work, such as direct observation by a reliable and credible source of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse.
(B) A report of abnormal conduct or erratic behavior by a reliable and credible source.
(C) A report of substance abuse provided by a reliable and credible source.
(D) Evidence that an individual has tampered with any substance abuse test during his or her employment with the current employer.
(E) Information that an employee has caused or contributed to an accident while at work.
(F) Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer00 premises or while operating the employer00 vehicle, machinery, or equipment.
(15) 00eason to suspect00means an articulable belief that an employee possesses or uses drugs or alcohol at the workplace, or is intoxicated or impaired by drugs or alcohol, based on specific and particularized facts and reasonable inferences drawn from those facts in light of experience.
(16) 00ehabilitation program00means an established program, provided by persons licensed or certified by the state as health professionals or to provide drug or alcohol rehabilitative services, capable of providing expert identification, assessment, and resolution of employee drug or alcohol abuse in a confidential and timely manner.
(17) 00pecimen00means a product of the human body capable of revealing the presence of drugs or their metabolites, or of alcohol. For the purposes of this subchapter 00pecimen00shall refer to urine in all cases of drug testing except alcohol, and to breath in all cases of alcohol testing.
(18) 00ubstance00means a drug or alcohol.
(19) 00ubstance rehabilitation program00means a service provider, capable of providing confidential, timely, and expert identification, assessment, and resolution of employee drug abuse.
(20) 00hreshold detection level00indicates the level at which a valid conclusion can be drawn that the substance is present in an employee00 specimen, and means the level at which the presence of a substance can be reasonably expected to be detected by an initial and confirmatory test performed by a laboratory meeting the standards specified in this subchapter, or for alcohol, by a qualified testing professional. The threshold detection level for the presence of alcohol shall be an alcohol concentration of 0.02, as alcohol concentration is defined in section 1200 of Title 23.
搂 522. SUBSTANCE-FREE WORKPLACE PROGRAM
(a) If an employer implements a substance-free workplace program in accordance with the provisions of this subchapter, the employer may require an employee to submit to a test for the presence of a substance. The employer may terminate an employee who refuses to undergo testing for substance use.
(b) If a substance is found to be present in an employee00 body above the threshold detection level, pursuant to this subchapter, the employee may be referred to an employee assistance program or a substance rehabilitation program, and may be suspended for the period of time necessary to complete the program, but no longer than three months.
(c) An employee who is tested after an on-the-job accident and who tests positive for a substance forfeits his or her eligibility for medical and indemnity benefits which may arise from the accident in question under Vermont00 workers00compensation law under chapter 9 of this title.
(d) A substance-free workplace program shall require the employer to notify all employees in writing that it is a condition of employment for the employee to refrain from reporting to work or working with the presence of a substance in his or her body and, if an employee refuses to submit to a substance test, the employee may forfeit eligibility for medical and indemnity benefits and may be terminated.
(e) A substance-free workplace program shall include the following:
(1) A one-time notice to all employees and job applicants as described in section 523 of this title.
(2) Identification of an employee assistance program or a substance rehabilitation program to which employees may be referred or enter voluntarily, as provided in section 529 of this title.
(3) An explanation of the actions the employer may take against an employee or job applicant on the basis of a positive confirmed substance test result.
(4) An explanation of the chain of custody of specimens taken for the purposes of drug or alcohol testing.
(f) Collective bargaining rights. This subchapter shall not be construed to eliminate the bargaining rights provided in the collective bargaining process if applicable.
搂 523. NOTICE OF TESTING; WRITTEN POLICY STATEMENT
(a) One time only, prior to testing, all employees and job applicants for employment must be given a notice of testing. In addition, all employees must be given a written policy statement from the employer which contains:
(1) A general statement of the employer00 policy on employee substance abuse which shall identify:
(A) The types of testing to which an employee or job applicant may be required to submit, including testing based upon a reasonable suspicion or other basis used to determine when such testing will be required.
(B) The actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result.
(2) A statement advising an employee or job applicant of the existence of this subchapter.
(3) A general statement concerning confidentiality.
(4) The consequence of refusing to submit to a substance test.
(5) A statement advising an employee of the employee assistance program, if the employer offers such program, or advising the employee of the employer00 resource file or assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems.
(6) A statement that an employee or job applicant who receives a positive confirmed substance test result may contest or explain the result to the employer within five working days after written notification of the positive test result.
(b) An employer not having a substance abuse testing program in effect prior to July 1, 1999, shall ensure that at least 60 days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place prior to July 1, 1999, shall not be required to provide a 60-day notice period.
(c) An employer shall include notice of substance abuse testing on vacancy announcements for those positions for which testing is required. A notice of the employer00 substance abuse testing policy must also be posted in an appropriate and conspicuous location on the employer00 premises, and copies of the policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer00 personnel office or other suitable locations.
搂 524. TESTING CIRCUMSTANCES ALLOWED IN SUBSTANCE-FREE
WORKPLACE PROGRAMS
(a) All testing conducted by an employer shall be in conformity with standards and procedures established in this subchapter and all applicable rules adopted by the department of health and the department of labor and industry pursuant to this subchapter. However, an employer shall not have a legal duty under this subchapter to request an employee or job applicant to undergo testing.
(b) Substance testing is permitted as part of a substance-free workplace program under the following circumstances:
(1) Job applicant substance testing. An employer may require job applicants to submit to a substance test and may use a refusal to submit to a substance test or a positive confirmed substance test as a basis for refusing to hire a job applicant.
(2) Reasonable-suspicion substance testing. An employer may require an employee to submit to reasonable-suspicion substance testing.
(3) Companywide substance testing. An employer may require an employee to submit to a substance test as part of a scheduled companywide test as established in the company00 written substance-free workplace program.
(4) Follow-up substance testing. If the employee in the course of employment enters an employee assistance program for substance-related problems, or a substance rehabilitation program, the employer may require the employee to submit to a substance test as a follow-up to such program at any time during a two-year period after completion of the program.
(5) Random testing of employees. An employer may require employees to submit to periodic random substance testing to determine the presence of illegal substances.
(6) Post-accident substance testing. An employer may require an employee to submit to substance testing after an injury or accident on the job.
搂 525. URINALYSIS; PROCEDURES FOR SPECIMEN COLLECTION
AND TESTING
Urinalysis shall be used in all testing for substances except alcohol. All urine specimen collection and testing under this subchapter shall be performed in accordance with the following procedures:
(1) A specimen shall be collected with due regard to the privacy of the individual providing the specimen and in a manner reasonably calculated to prevent substitution or contamination of the specimen.
(2) Specimen collection shall be documented, and the documentation procedures shall include:
(A) Labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results.
(B) An opportunity for the employee or job applicant to record any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information. Providing such information shall not preclude the administration of the test, but shall be taken into account in interpreting any positive confirmed results.
(3) Specimen collection, storage, and transportation to the testing site shall be performed in a manner which will reasonably preclude specimen contamination or adulteration.
(4) Each initial and confirmation test conducted under this subchapter, not including the taking or collecting of a specimen to be tested, shall be conducted by a laboratory as described in section 527 of this title.
(5) A specimen for a test may be taken or collected by any of the following persons:
(A) A physician, a physician00 assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment.
(B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, or the College of American Pathologists.
(C) A qualified person certified or employed by a collection company.
(6) Within five working days after receipt of a positive or confirmed test result from the laboratory, an employer shall inform an employee or job applicant in writing of the positive or confirmed test result, the consequences of such results, and the options available to the employee or job applicant.
(7) The employer shall provide to the employee or job applicant, upon request, a copy of the test results.
(8) An initial test having a positive result must be verified by a confirmation test.
(9) An employer who performs substance testing or specimen collection shall use chain of custody procedures to ensure proper recordkeeping, handling, labeling and identification of all specimens to be tested.
(10) An employer shall pay the cost of all drug tests, initial and confirmation, which the employer requires of employees.
(11) An employee or job applicant shall pay the cost of any additional tests not required by the employer.
(12) If testing is conducted based on reasonable suspicion, the employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the employer pursuant to section 530 of this title and retained by the employer for at least one year.
搂 526. ALCOHOL BREATH TEST; PROCEDURES FOR SPECIMEN
COLLECTION AND TESTING
Alcohol breath testing shall be used in all testing for alcohol. All breath testing under this subchapter shall be performed in accordance with the following procedures:
(1) A breath test shall be administered only by a person who has been certified by the Vermont department of health to operate the breath testing equipment being employed.
(2) All breath test results equal to or exceeding a blood alcohol concentration of 0.02 percent shall be reported as positive.
(3) An initial alcohol test having a positive result must be verified by a confirmation test.
(4) A person administering a breath test shall allow a period of ten minutes to pass between the administration of the initial test and the administration of the confirmation test.
(5) A confirmation breath test may utilize the same testing procedures, methods and equipment as the initial test.
(6) Within five working days after the administration of a positive confirmed breath test result, an employer shall inform an employee or job applicant in writing of the consequences of such results, and the options available to the employee or job applicant.
(7) If a breath testing is conducted based on reasonable suspicion, the employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the employer pursuant to section 530 of this title and retained by the employer for at least one year.
搂 527. LABORATORY QUALIFICATIONS
(a) The department of health shall designate laboratories to analyze initial or confirmation substance specimens.
(b) No facility may be approved as a designated laboratory unless:
(1) The laboratory is approved by the National Institute of Drug Abuse or the College of American Pathologists.
(2) The laboratory follows proper quality control procedures to ensure the chain of custody.
(3) The laboratory follows proper quality control procedures including, but not limited to:
(A) The use of internal quality controls, including the use of samples of known concentrations which are used to check the performance and calibration of testing equipment and periodic use of blind samples for overall accuracy.
(B) An internal review and certification process for substance test results conducted by a person qualified to perform that function in the testing laboratory.
(C) Security measures implemented by the testing laboratory to preclude adulteration of specimens and substance test results.
(D) Other necessary and proper actions taken to ensure reliable and accurate substance test results.
(c) A laboratory that fails to comply with the provisions of this subchapter relating to the confirmation and reporting of test information and release of confidential information shall lose its designation under this section.
搂 528. LABORATORY PROCEDURES AND REPORTS;
CONFIRMATION TESTS
(a) A laboratory shall disclose to the employer a written urinalysis test result report within seven working days after receipt of the sample. All laboratory reports of a drug test result shall, at a minimum, state:
(1) The name and address of the laboratory which performed the test and the positive identification of the person tested.
(2) Positive results on confirmation tests only, or negative results, as applicable.
(3) A list of the drugs for which the drug analyses were conducted.
(4) The type of tests conducted for both initial and confirmation tests and the threshold detection levels of the tests.
(b) No report shall disclose the presence or absence of any drug other than a specific drug and its metabolites listed pursuant to this subchapter.
(c) Laboratories shall provide technical assistance to the employer, employee, or job applicant for the purpose of interpreting any positive confirmation test results which could have been caused by prescription or nonprescription medication taken by the employee or job applicant.
(d) All positive initial urinalysis tests shall be confirmed using the gas chromatography/mass spectrometry (GC/MS) method or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse as such technology becomes available in a cost-effective form.
搂 529. EMPLOYEE ASSISTANCE PROGRAMS
(a) If an employer has an employee assistance program, the employer must inform the employee of the benefits and services of the employee assistance program. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program.
(b) If an employer who wishes to administer a substance-free workplace program does not have an employee assistance program, the employer must maintain a resource file of providers of other employee assistance, including substance abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems and must notify the employee of the availability of this resource file. In addition, the employer shall post in a conspicuous place a listing of providers of employee assistance in the area.
搂 530. CONFIDENTIALITY OF INFORMATION
(a) All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence obtained in discovery, or disclosed in any civil or administrative proceeding, except as provided in this section.
(b) Employees, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs, and their agents who receive or have access to information concerning test results shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, unless release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum:
(1) The name of the person who is authorized to obtain the information.
(2) The precise information to be disclosed.
(3) The duration of the consent.
(4) The signature of the person authorizing release of the information.
(c) Information on test results shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this section shall be inadmissible as evidence in any such criminal proceeding.
(d) Nothing contained in this subchapter shall be construed to prohibit the employer or laboratory conducting a test from having access to employee test information when consulting with legal counsel when the information is relevant to its defense in a civil or administrative matter.
搂 531. EMPLOYER PROTECTION
(a) An employer who suspends, discharges, or disciplines an employee as provided for in this subchapter shall be considered to have suspended, discharged, or disciplined for cause.
(b) An employer who refuses to hire a job applicant who has tested positive for a substance in compliance with this section shall be considered to have refused to hire for cause.
(c) No physician-patient relationship is created between employee or job applicant and an employer or any person performing or evaluating a substance test solely by the establishment, implementation, or administration of a substance testing program.
(d) Nothing in this subchapter shall be construed to prevent an employer from establishing reasonable work rules, not in conflict with this subchapter, related to employee possession, use, sale, or solicitation of drugs, including conviction for substance-related offenses, and taking action based upon a violation of any of these rules.
搂 532. POSITIVE TEST RESULTS; OPPORTUNITY TO RETEST;
EMPLOYEE PROTECTION
(a) An employer shall provide an employee or applicant who has a positive test result an informal meeting to explain the results and explain why the results may not be accurate.
(b) The employer shall provide any applicant or employee who has a positive test result with an opportunity to retest a portion of the original specimen at an independent laboratory at the expense of the person tested and shall consider the results of the retest.
(c) Employees and job applicants shall have the right to consult the testing laboratory for technical information regarding prescription and nonprescription medication.
(d) Employers who choose to utilize reasonable suspicion substance testing, as part of their substance-free workplace program, must within seven days after testing based on reasonable suspicion detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidentially by the employer and retained by the employer for least at one year.
(e) The substance testing laboratory may not disclose any information concerning the health of the tested employee.
(f) The employer may not request or receive from any testing facility any information concerning the personal health, habits, or condition of an injured employee.
(g) No employer may discharge, discipline, or discriminate against an employee solely upon the employee00 voluntarily seeking treatment, while under the employment of the employer, for a substance-related problem if the employee has not previously tested positive for substance use, entered an employee assistance program for substance-related problems, or entered an alcohol or drug rehabilitation program.
(h) No employer may discharge an employee solely for having tested positive for substance use, unless one of the following criteria is met:
(1) The employee refuses to enter a substance rehabilitation program or an employee assistance program after testing positive for substance use.
(2) The employee tests positive for substance use as part of a substance test administered within two years subsequent to returning to work after entering into a substance rehabilitation program or an employee assistance program.
(i) An employer may suspend an employee for not more than three months if the employee tests positive for drugs or alcohol.
Sec. 3. 21 V.S.A. 搂 649 is amended to read:
搂 649. INJURIES NOT COVERED; BURDEN OF PROOF; SUBSTANCE-
FREE WORKPLACE PROGRAM
(a) Compensation shall not be allowed for an injury caused by an employee's wilful intention to cause self injury or to injure himself or another or by or during his intoxication or by an employee's failure to use a safety appliance provided for his the employee00 use. The burden of proof shall be upon the employer if he the employer claims the benefit of the provisions of this section subsection.
(b) An employee employed by an employer who has implemented a substance-free workplace program as provided in section 522 of this title shall be denied benefits arising from an accident under this chapter if the employee has refused to undergo testing for substance use as required under the program or has a confirmed positive result after testing under the program. The burden of proof shall be on the employer to establish compliance with the substance-free workplace program and that the employee00 positive substance testing result has been confirmed.
Sec. 4. EFFECTIVE DATE
This act shall take effect upon passage.
BILL AS INTRODUCED H.326
1999 Page
