1.Testing of applicants. An employer may require, request or suggest that an applicant submit to a substance abuse test only if:
A. The applicant has been offered employment with the employer; or [1989, c. 536, §§1, 2 (NEW); 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. [1989, c. 536, §§1, 2 (NEW); 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.
[
1989, c. 536, §§1, 2 (NEW);
1989, c. 604, §§2, 3 (AFF)
.]
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. [1989, c. 832, §10 (AMD).]
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. [1989, c. 536, §§1, 2 (NEW); 1989, c. 604, §§2, 3 (AFF).]
[
1989, c. 832, §10 (AMD)
.]
3.Random or arbitrary testing of employees. In addition to testing employees on a probable cause basis under subsection 2, an employer may require, request or suggest
that an employee submit to a substance abuse test on a random or arbitrary basis if:
A. The employer and the employee have bargained for provisions in a collective bargaining agreement, either before or after
the effective date of this subchapter, that provide for random or arbitrary testing of employees. A random or arbitrary testing
program that would result from implementation of an employer's last best offer is not considered a provision bargained for
in a collective bargaining agreement for purposes of this section; [2003, c. 547, §2 (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 of abuse. It is the intent of
the Legislature that the requirements of this paragraph be narrowly construed; or [2003, c. 547, §2 (AMD).]
C. The employer has established a random or arbitrary testing program under this paragraph that applies to all employees, except
as provided in subparagraph (4), regardless of position.
(1) An employer may establish a testing program under this paragraph only if the employer has 50 or more employees who are
not covered by a collective bargaining agreement.
(2) The written policy required by section 683, subsection 2 with respect to a testing program under this paragraph must
be developed by a committee of at least 10 of the employer's employees. The employer shall appoint members to the committee
from a cross-section of employees who are eligible to be tested. The committee must include a medical professional who is
trained in procedures for testing for substances of abuse. If no such person is employed by the employer, the employer shall
obtain the services of such a person to serve as a member of the committee created under this subparagraph.
(3) The written policy developed under subparagraph (2) must also require that selection of employees for testing be performed
by a person or entity not subject to the employer's influence, such as a medical review officer. Selection must be made from
a list, provided by the employer, of all employees subject to testing under this paragraph. The list may not contain information
that would identify the employee to the person or entity making the selection.
(4) Employees who are covered by a collective bargaining agreement are not included in testing programs pursuant to this
paragraph unless they agree to be included pursuant to a collective bargaining agreement as described under paragraph A.
(5) Before initiating a testing program under this paragraph, the employer must obtain from the Department of Labor approval
of the policy developed by the employee committee, as required in section 686. If the employer does not approve of the written
policy developed by the employee committee, the employer may decide not to submit the policy to the department and not to
establish the testing program. The employer may not change the written policy without approval of the employee committee.
(6) The employer may not discharge, suspend, demote, discipline or otherwise discriminate with regard to compensation or
working conditions against an employee for participating or refusing to participate in an employee committee created pursuant
to this paragraph. [2003, c. 547, §2 (NEW).]
[
2003, c. 547, §2 (AMD)
.]
4.Testing while undergoing rehabilitation or treatment. While the employee is participating in a substance abuse 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 abuse testing may be conducted by the rehabilitation or treatment
provider as required, requested or suggested by that provider.
A. Substance abuse testing conducted as part of such a rehabilitation or treatment program is not subject to the provisions
of this subchapter regulating substance abuse testing. [1989, c. 536, §§1, 2 (NEW); 1989, c. 604, §§2, 3 (AFF).]
B. An employer may not require, request or suggest that any substance abuse test be administered to any employee while the
employee is undergoing such rehabilitation or treatment, except as provided in subsections 2 and 3. [1989, c. 536, §§1, 2 (NEW); 1989, c. 604, §§2, 3 (AFF).]
C. The results of any substance abuse test administered to an employee as part of such a rehabilitation or treatment program
may not be released to the employer. [1989, c. 536, §§1, 2 (NEW); 1989, c. 604, §§2, 3 (AFF).]
[
1989, c. 536, §§1, 2 (NEW);
1989, c. 604, §§2, 3 (AFF)
.]
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 a subsequent substance abuse 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 abuse test during the first 90 days after
the date of the employee's prior test only as provided in subsections 2 and 3.
[
1989, c. 832, §11 (NEW)
.]
SECTION HISTORY
1989, c. 536, §§1,2 (NEW).
1989, c. 604, §§2,3 (AMD).
1989, c. 832, §§10,11 (AMD).
2001, c. 706, §1 (AMD).
2003, c. 547, §2 (AMD).
Data for this page extracted on 10/14/2009 10:53:23.