HF 3277

as introduced - 88th Legislature (2013 - 2014) Posted on 03/24/2014 12:40pm

A bill for an act
relating to employers; permitting and regulating on-site drug and alcohol testing
at employer work sites; amending Minnesota Statutes 2012, sections 181.950,
subdivisions 5, 8, by adding a subdivision; 181.951, subdivision 1; 181.952;
181.953, subdivisions 1, 3, 4, 5, 7, by adding a subdivision; 181.954, subdivision
1; proposing coding for new law in Minnesota Statutes, chapter 181.

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

Section 1.

Minnesota Statutes 2012, section 181.950, subdivision 5, is amended to read:

Subd. 5.

Drug and alcohol testing.

"Drug and alcohol testing," "drug or alcohol
testing," and "drug or alcohol test" mean analysis of a body component sample deleted text begin according
to the standards established under one of the programs listed in section 181.953,
subdivision 1, deleted text end for the purpose of measuring the presence or absence of drugs, alcohol,
or their metabolites in the sample tested.

Sec. 2.

Minnesota Statutes 2012, section 181.950, subdivision 8, is amended to read:

Subd. 8.

Initial screening test.

"Initial screening test" means a drug or alcohol
test which new text begin is either:
new text end

new text begin (1) a test that new text end uses a method of analysis under one of the programs listed in section
181.953, subdivision 1 new text begin ; or
new text end

new text begin (2) an on-site test as defined in subdivision 9a new text end .

Sec. 3.

Minnesota Statutes 2012, section 181.950, is amended by adding a subdivision
to read:

new text begin Subd. 9a. new text end

new text begin On-site test. new text end

new text begin "On-site test" means a drug or alcohol test that:
new text end

new text begin (1) can be administered at the employer's work site or elsewhere and does not require
the involvement of a laboratory, including testing by use of a single-use test device, known
as an on-site or quick testing device;
new text end

new text begin (2)(i) is in the form of a sealed container or cartridge that has a validity check, a
nonresealable closure, or an evidentiary tape that ensures detection of any tampering;
new text end

new text begin (ii) is self-contained and individually packaged;
new text end

new text begin (iii) is discarded after each test; and
new text end

new text begin (iv) does not allow any test component or constituent of a test system to interact
between tests; and
new text end

new text begin (3) has been cleared by the United States Food and Drug Administration for
commercial marketing under section 510(k) of the federal Food, Drug, and Cosmetic Act
in the case of a drug test, or meets federal Department of Transportation guidelines as
provided by Code of Federal Regulations, title 49, section 40, in the case of an alcohol test.
new text end

Sec. 4.

Minnesota Statutes 2012, 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,
new text begin except in the case of an on-site test conducted in compliance with section 181.9535, new text end is
conducted by a testing laboratory which participates in one of the programs listed in
section 181.953, subdivision 1.

(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. 5.

Minnesota Statutes 2012, section 181.952, is amended to read:

181.952 POLICY CONTENTS; PRIOR WRITTEN NOTICE.

Subdivision 1.

Contents of the policy.

An employer's drug and alcohol testing
policy must, at a minimum, set forth the following information:

(1) the employees or job applicants subject to testing under the policy;

(2) the circumstances under which drug or alcohol testing may be requested or
required;

new text begin (3) whether the employer uses on-site testing;
new text end

deleted text begin (3) deleted text end new text begin (4) new text end the right of an employee or job applicant to refuse to undergo drug and
alcohol testing and the consequences of refusal;

deleted text begin (4) deleted text end new text begin (5) new text end any disciplinary or other adverse personnel action that may be taken based on
a confirmatory test verifying a positive test result on an initial screening test;

deleted text begin (5) deleted text end new text begin (6) new text end the right of an employee or job applicant to explain a positive test result on a
confirmatory test or request and pay for a confirmatory retest; and

deleted text begin (6) deleted text end new text begin (7) new text end any other appeal procedures available.

Subd. 2.

Notice.

An employer shall provide written notice of its drug and alcohol
testing policy to all affected employees upon adoption of the policy new text begin or modification of
the policy new text end , to a previously nonaffected employee upon transfer to an affected position
under the policy, and to a job applicant upon hire and before any testing of the applicant
if the job offer is made contingent on the applicant passing drug and alcohol testing.
An employer shall also post notice in an appropriate and conspicuous location on the
employer's premises that the employer has adopted a drug and alcohol testing policy and
that copies of the policy are available for inspection during regular business hours by its
employees or job applicants in the employer's personnel office or other suitable locations.

Sec. 6.

Minnesota Statutes 2012, section 181.953, subdivision 1, is amended to read:

Subdivision 1.

Use of licensed, accredited, or certified laboratory required.

(a)
new text begin Except when conducting an on-site test according to the requirements of section 181.9535,
new text end an employer who requests or requires an employee or job applicant to undergo drug or
alcohol 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. 7.

Minnesota Statutes 2012, section 181.953, subdivision 3, is amended to read:

Subd. 3.

Laboratory testing, reporting, and sample retention requirements.

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, or drug or alcohol 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 For the purposes of this
subdivision, a test performed by a testing laboratory on a sample that has already produced
a positive result in an on-site test is a confirmatory test and not an initial screening test.
new text end

Sec. 8.

Minnesota Statutes 2012, section 181.953, subdivision 4, is amended to read:

Subd. 4.

Prohibitions on employers.

An employer may not conduct drug or
alcohol testing of its own employees and job applicants using a testing laboratory owned
and operated by the employer; except that, one agency of the state may test the employees
of another agency of the state. Except as provided in subdivision 9, an employer may
not request or require an employee or job applicant to contribute to, or pay the cost of,
drug or alcohol testing under sections 181.950 to 181.954. new text begin Nothing in this subdivision
prevents an employer from conducting an on-site test that complies with the requirements
of section 181.9535.
new text end

Sec. 9.

Minnesota Statutes 2012, section 181.953, subdivision 5, is amended to read:

Subd. 5.

Employer chain-of-custody procedures.

An employer shall establish
its own reliable chain-of-custody procedures to ensure proper record keeping, handling,
labeling, and identification of the samples to be tested. The procedures must require
the following:

(1) possession of a sample must be traceable to the employee from whom the sample
is collected, from the time the sample is collected through the time the sample is delivered
to the laboratory new text begin or, in the case of an on-site test that produces a negative result, otherwise
disposed of by the employer or other person conducting the test new text end ;

(2) the sample must always be in the possession of, must always be in view of, or
must be placed in a secured area by a person authorized to handle the sample;

(3) a sample must be accompanied by a written chain-of-custody record; and

(4) individuals relinquishing or accepting possession of the sample must record
the time the possession of the sample was transferred and must sign and date the
chain-of-custody record at the time of transfer.

Sec. 10.

Minnesota Statutes 2012, section 181.953, is amended by adding a subdivision
to read:

new text begin Subd. 5a. new text end

new text begin Adulteration prohibited. new text end

new text begin No employer or other party having control over
a sample collected from an employee shall adulterate, tamper with, or change the chemical
composition of a sample with the intent of affecting the test results. This subdivision does
not prohibit any action that is taken in accordance with the manufacturer instructions of an
on-site test or is performed by a laboratory in the normal course of its testing procedures.
new text end

Sec. 11.

Minnesota Statutes 2012, section 181.953, subdivision 7, is amended to read:

Subd. 7.

Notice of test results.

new text begin (a) new text end Within three working days after receipt of
a test result report from deleted text begin the deleted text end new text begin a new text end testing laboratory, an employer shall inform in writing an
employee or job applicant who has undergone drug or alcohol testing of (1) a negative test
result on an initial screening test or of a negative or positive test result on a confirmatory
test and (2) the right provided in subdivision 8. In the case of a positive test result on a
confirmatory test, the employer shall also, at the time of this notice, inform the employee
or job applicant in writing of the rights provided in subdivisions 6, paragraph (b), 9, and
either subdivision 10 or 11, whichever applies.

new text begin (b) No later than the first business day after an employer or other person completes
an on-site test, the person shall inform an employee or job applicant who has undergone
drug or alcohol testing of:
new text end

new text begin (1) the positive or negative result of the on-site test; and
new text end

new text begin (2) in the case of a positive result:
new text end

new text begin (i) that the original sample is being sent to a testing laboratory where a confirmatory
test will be completed; or
new text end

new text begin (ii) if the original sample is degraded, is no longer in existence, or was a sample
taken for a single-use test device, known as an on-site or quick testing device, that the
employee must undergo drug or alcohol testing at a laboratory at which time a new initial
test must be conducted according to the requirements of this section.
new text end

new text begin (c) All information required to be given to an employee under sections 181.950 to
181.957 must be provided in the employee's predominant language, if that language
is known to the employer. The employer or other person administering the test may
use printed information, translators, or interpreters as appropriate to the particular
circumstances.
new text end

Sec. 12.

new text begin [181.9535] ON-SITE TESTING.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin Any employer who conducts an on-site test must comply with
the requirements of this section. An employer must not discharge, discipline, discriminate
against, or request or require rehabilitation of an employee on the basis of a positive test
result from an on-site test.
new text end

new text begin Subd. 2. new text end

new text begin Employees covered by collective bargaining agreement. new text end

new text begin On-site testing
must not be used to test any employee who is covered by a collective bargaining agreement
unless the collective bargaining agreement expressly authorizes the use of on-site testing.
new text end

new text begin Subd. 3. new text end

new text begin Person administering test. new text end

new text begin An employer may use an on-site test either by
conducting the test at the work site or by having the test performed elsewhere by a person
authorized by the employer to perform the test, provided that any third party performing a
test on an employer's behalf must comply with the requirements of this subdivision. An
on-site test may be administered only by an individual who:
new text end

new text begin (1) has been trained on the proper procedure for administering the test and accurate
evaluation of test results, including:
new text end

new text begin (i) instruction on the contents of the manufacturer's package insert as submitted and
approved by the federal Food and Drug Administration; and
new text end

new text begin (ii) completion of the manufacturer's self-test and written examination, if any;
new text end

new text begin (2) has agreed in writing with the employer to hold all information related to any
phase of the drug test confidential according to state law; and
new text end

new text begin (3) has received information from the employer regarding the employer's drug and
alcohol testing policy, the collection and handling methods to be used, and the protections
available to the employee.
new text end

new text begin Subd. 4. new text end

new text begin Test to be conducted according to manufacturer's instructions. new text end

new text begin An
on-site test must be conducted according to the instructions provided by the manufacturer
of the testing product or products being used. If a manufacturer recommends particular
procedures to maximize the reliability of the test, those practices must be followed by
the employer.
new text end

new text begin Subd. 5. new text end

new text begin Collection site. new text end

new text begin The employer or other person administering the on-site
test must provide a safe, private, and clean site for collection of the sample. If the sample
involves the collection of urine, the person administering the test must not directly observe
the employee or job applicant while the employee or applicant is providing the sample.
new text end

new text begin Subd. 6. new text end

new text begin Requirements for sample container. new text end

new text begin Employers may use on-site testing
only if the testing process provides for collection of the sample using a container that:
new text end

new text begin (1) can be securely closed by the employee once the initial screen testing process has
been completed and cannot be opened except at the laboratory as part of a confirmatory
testing process;
new text end

new text begin (2) when closed after the sample is provided, has no holes or other openings that
would allow access to the sample; and
new text end

new text begin (3) is otherwise designed in such a way that the employer or person administering
the test has no direct access to the sample at any time after the initial process is completed
and before the sample is disposed of or the container is opened by a testing laboratory as
part of a confirmatory test.
new text end

new text begin Subd. 7. new text end

new text begin Adulteration testing by employer. new text end

new text begin If the sample involves the collection
of urine, no employer may open or bring any substance or object in contact with any
sample that has been provided by an employee in a collection device that has been closed
according to the manufacturer's instructions. If a sample is tested for adulterants, the
employee or applicant must be allowed to observe the procedure.
new text end

new text begin Subd. 8. new text end

new text begin Employee control over disposable items. new text end

new text begin (a) If an on-site test uses any
disposable, single-use equipment, such as collection containers or items used to test for
adulteration of the sample, those items must be individually packaged and must remain
sealed until immediately before use. With respect to these disposable, single-use items,
the person administering the test must permit the employee to:
new text end

new text begin (1) inspect the item while it is still sealed and observe the unsealing of the package;
and
new text end

new text begin (2) observe the item at all times between when it is opened and when its use is
completed.
new text end

new text begin (b) Before any on-site testing is performed, an employer must inform an employee
both orally and in writing of the employee's rights under this subdivision.
new text end

new text begin Subd. 9. new text end

new text begin Recording results. new text end

new text begin If the on-site test does not create a permanent record
documenting the result, then the person administering the test must immediately document
the result of the test by creating a written document describing the test result. This
document must state:
new text end

new text begin (1) whether the result was positive or negative; and
new text end

new text begin (2) describe what was observed, such as changes in color or the appearance of
marks or symbols, that led the individual administering the test to conclude that the result
was positive or negative. If the on-site test is designed to create a permanent record of
the result, or if the employer creates any written record of a test result, the record must
be retained by the employer for at least three years, and a copy of the record must be
available to the employee if copying is practical.
new text end

new text begin Subd. 10. new text end

new text begin Handling of urine sample. new text end

new text begin If the sample involves the collection of
urine, the employer or other person administering the test must employ chain-of-custody
procedures according to section 181.953, subdivision 5, in connection with any on-site
testing. If the result of an on-site test is negative, the person administering the test shall
immediately dispose of the sample. If the result of an on-site test is positive, the person
administering the test shall transport the original sample to a testing laboratory which shall
perform a confirmatory test, unless the original sample was taken for use with a single-use
test device, known as an on-site or quick testing device. In conducting the confirmatory test,
the testing laboratory must comply in all respects with the requirements of section 181.953.
new text end

new text begin Subd. 11. new text end

new text begin Freedom to collectively bargain. new text end

new text begin The provisions of section 181.955
apply to all on-site testing and on-site testing policies of employers.
new text end

new text begin Subd. 12. new text end

new text begin Federal preemption. new text end

new text begin The provisions of section 181.957 apply to all
on-site testing and on-site testing policies of employers.
new text end

Sec. 13.

Minnesota Statutes 2012, section 181.954, subdivision 1, is amended to read:

Subdivision 1.

Privacy limitations.

new text begin (a) new text end A laboratory may only disclose to the
employer test result data regarding the presence or absence of drugs, alcohol, or their
metabolites in a sample tested.

new text begin (b) An employer who collects a sample from an employee to perform an on-site test
must not retain or use the sample for any purpose other than determining (1) whether the
sample has been adulterated; and (2) the presence or absence of drugs, alcohol, or their
metabolites in the sample. Any other information the employer obtains from the process
of collecting, testing, storing, or transporting the sample must not be recorded by the
employer and must not be used as grounds for discipline, dismissal, or other action against
an employee or prospective employee.
new text end