SF 3638

as introduced - 93rd Legislature (2023 - 2024) Posted on 06/03/2024 07:57am

A bill for an act
relating to employment; authorizing oral fluid testing procedures as a
preemployment alternative for drug, alcohol, and cannabis testing by employers;
amending Minnesota Statutes 2022, sections 181.950, by adding a subdivision;
181.951, subdivision 1; Minnesota Statutes 2023 Supplement, section 181.953,
subdivisions 1, 3, by adding a subdivision.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2022, section 181.950, is amended by adding a subdivision
to read:

new text begin Subd. 9a. new text end

new text begin Oral fluid test. new text end

new text begin "Oral fluid test" means analysis of a saliva sample for the
purpose of measuring the presence of the same substances as drug and alcohol testing and
cannabis testing that:
new text end

new text begin (1) is approved by the commissioner of labor and industry;
new text end

new text begin (2) can detect drugs, alcohol, cannabis, or their metabolites in levels at or above the
threshold detection levels contained in the standards of one of the programs listed in section
181.953, subdivision 1; and
new text end

new text begin (3) does not require the services of a testing laboratory under section 181.953, subdivision
1.
new text end

Sec. 2.

Minnesota Statutes 2022, section 181.951, subdivision 1, is amended to read:

Subdivision 1.

Limitations on testing.

(a) An employer may not request or require an
employee or job applicant to undergo drug and alcohol testing except as authorized in this
section.

(b) An employer may not request or require an employee or job applicant to undergo
drug or alcohol testing unless the testing is done pursuant to a written drug and alcohol
testing policy that contains the minimum information required in section 181.952; and deleted text begin , deleted text end new text begin
either: (1) new text end is conducted by a testing laboratory which participates in one of the programs
listed in section 181.953, subdivision 1 new text begin ; or (2) complies with the oral fluid test procedures
under section 181.953, subdivision 5a new text end .

(c) An employer may not request or require an employee or job applicant to undergo
drug and alcohol testing on an arbitrary and capricious basis.

Sec. 3.

Minnesota Statutes 2023 Supplement, section 181.953, subdivision 1, is amended
to read:

Subdivision 1.

Use of licensed, accredited, or certified laboratory required.

(a) new text begin Except
as provided under subdivision 5a, new text end an employer who requests or requires an employee or
job applicant to undergo drug or alcohol testing or cannabis testing shall use the services
of a testing laboratory that meets one of the following criteria for drug testing:

(1) is certified by the National Institute on Drug Abuse as meeting the mandatory
guidelines published at 53 Federal Register 11970 to 11989, April 11, 1988;

(2) is accredited by the College of American Pathologists, 325 Waukegan Road,
Northfield, Illinois, 60093-2750, under the forensic urine drug testing laboratory program;
or

(3) is licensed to test for drugs by the state of New York, Department of Health, under
Public Health Law, article 5, title V, and rules adopted under that law.

(b) For alcohol testing, the laboratory must either be:

(1) licensed to test for drugs and alcohol by the state of New York, Department of Health,
under Public Health Law, article 5, title V, and the rules adopted under that law; or

(2) accredited by the College of American Pathologists, 325 Waukegan Road, Northfield,
Illinois, 60093-2750, in the laboratory accreditation program.

Sec. 4.

Minnesota Statutes 2023 Supplement, section 181.953, subdivision 3, is amended
to read:

Subd. 3.

Laboratory testing, reporting, and sample retention requirements.

new text begin (a) new text end A
testing laboratory that is not certified by the National Institute on Drug Abuse according to
subdivision 1 shall follow the chain-of-custody procedures prescribed for employers in
subdivision 5. A testing laboratory shall conduct a confirmatory test on all samples that
produced a positive test result on an initial screening test. A laboratory shall disclose to the
employer a written test result report for each sample tested within three working days after
a negative test result on an initial screening test or, when the initial screening test produced
a positive test result, within three working days after a confirmatory test. A test report must
indicate the drugs, alcohol, drug or alcohol metabolites, or cannabis or cannabis metabolites
tested for and whether the test produced negative or positive test results. A laboratory shall
retain and properly store for at least six months all samples that produced a positive test
result.

new text begin (b) This subdivision and the chain-of-custody procedures under subdivision 5 do not
apply to oral fluid testing under subdivision 5a.
new text end

Sec. 5.

Minnesota Statutes 2023 Supplement, section 181.953, is amended by adding a
subdivision to read:

new text begin Subd. 5a. new text end

new text begin Oral fluid testing. new text end

new text begin (a) An employer may elect to comply with the oral fluid
testing procedures under this subdivision as an alternative to the drug and alcohol testing
or cannabis testing procedures for job applicants in this section.
new text end

new text begin (b) An employer may request or require a job applicant to undergo oral fluid testing. If
the oral fluid test indicates a positive test result or the test is inconclusive or invalid, the job
applicant must undergo drug or alcohol testing or cannabis testing using the services of a
testing laboratory under subdivision 1 within 48 hours of the oral fluid test to remain eligible
for the job. The rights, notice, retest procedures, and limitations on withdrawal of a job offer
in subdivisions 6 to 11 apply to the job applicant and a laboratory test conducted pursuant
to this paragraph.
new text end