Chapter 324
2011 -- H 5944
Enacted 07/12/11
A N A C T
RELATING TO
LABOR AND LABOR RELATIONS - URINE AND BLOOD TESTS
Introduced By: Representatives Edwards, Guthrie, Gallison, DaSilva, and Azzinaro
Date Introduced: March 17, 2011
It is enacted by the
General Assembly as follows:
SECTION 1. Section 28-6.5-1 of the General Laws in Chapter
28-6.5 entitled "Urine and
Blood Tests as a Condition
of Employment" is hereby amended to read as follows:
28-6.5-1. Testing
permitted only in accordance with this section. -- (a) No employer
or agent of any employer shall, either orally or in
writing, request, require, or subject any
employee to submit a sample of his or her urine, blood, or
other bodily fluid or tissue for testing
as a condition of continued employment unless that test
is administered in accordance with the
provisions of this section. Employers may require that an
employee submit to a drug test if:
(1) The employer has
reasonable grounds to believe based on specific aspects of the
employee's job performance and specific contemporaneous
observations, capable of being
articulated, concerning the employee's appearance, behavior or
speech that the employee's use of
controlled substances is impairing his or her ability to perform
his or her job;
(2) The employee
provides the test sample in private, outside the presence of any person;
(3) Employees testing
positive are not terminated on that basis, but are instead referred to
a substance abuse professional (a licensed physician
with knowledge and clinical experience in
the diagnosis and treatment of drug related disorders, a
licensed or certified psychologist, social
worker, or EAP professional with like knowledge, or a substance
abuse counselor certified by the
National Association of Alcohol and Drug Abuse
Counselors (all of whom shall be licensed in
in accordance with this referral, and an employee whose
testing indicates any continued use of
controlled substances despite treatment may be terminated;
(4) Positive tests of
urine, blood or any other bodily fluid or tissue are confirmed by a
federally certified laboratory by means of gas
chromatography/mass spectrometry or technology
recognized as being at least as scientifically accurate;
(5) The employer
provides the employee, at the employer's expense, the opportunity to
have the sample tested or evaluated by an independent
testing facility and so advises the
employee;
(6) The employer
provides the employee with a reasonable opportunity to rebut or
explain the results;
(7) The employer has
promulgated a drug abuse prevention policy which complies with
requirements of this chapter; and
(8) The employer keeps
the results of any test confidential, except for disclosing the
results of a "positive" test only to other
employees with a job-related need to know, and to defend
against any legal action brought by the employee against the
employer.
(b) Any employer who
subjects any person employed by him or her to this test, or
causes, directly or indirectly, any employee to take the
test, except as provided for by this chapter,
shall be guilty of a misdemeanor punishable by a fine of
not more than one thousand dollars
($1,000) or not more than one year
in jail, or both.
(c) In any civil action
alleging a violation of this section, the court may:
(1) Award punitive
damages to a prevailing employee in addition to any award of actual
damages;
(2) Award reasonable
attorneys' fees and costs to a prevailing employee; and
(3) Afford injunctive
relief against any employer who commits or proposes to commit a
violation of this section.
(d) Nothing in this
chapter shall be construed to impair or affect the rights of individuals
under chapter 5 of this title.
(e) Nothing in this
chapter shall be construed to:
(1) Prohibit or apply to
the testing of drivers regulated under 49 C.F.R. section 40.1 et
seq and 49 C.F.R. part 382 if that testing is performed
pursuant to a policy mandated by the
federal government; or
(2) Prohibit an
employer in the public utility or mass transportation industry from
requiring testing otherwise barred by this chapter if that
testing is explicitly mandated by federal
regulation or statute as a condition for the continued receipt
of federal funds.
(f) Notwithstanding
the foregoing, this chapter shall not apply to members of the
International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers and its
signatory contractors jointly participating in the IMPACT
National Substance Abuse Program for
purposes of pre-qualifying workers for employment on and
ensuring the maintenance of
designated drug free work sites; provided, however, that:
(1) Participation by
each worker is voluntary; and
(2) Workers who
refuse to participate shall not be subjected to any adverse employment
action other than an inability to work on a designated drug
free work site; and
(3) The penalty for a
first "positive" test shall not exceed a thirty (30) day suspension
from work on designated drug free work sites.
SECTION 2. This act shall take effect upon passage.
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LC02214
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