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1988 Minnesota Session Laws

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                         Laws of Minnesota 1988 

                        CHAPTER 536-S.F.No. 2117 
           An act relating to employment; allowing certain 
          nonlicensed facilities to perform breath tests for 
          alcohol; amending Minnesota Statutes 1987 Supplement, 
          sections 181.951, subdivision 1; 181.953, subdivisions 
          1 and 2. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1987 Supplement, 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, is conducted by a testing laboratory licensed 
under section 181.953, subdivision 1, except as otherwise 
permitted under that subdivision, or by a nonlicensed laboratory 
as transitionally allowed under section 181.953, subdivision 2.  
    (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. 2.  Minnesota Statutes 1987 Supplement, section 
181.953, subdivision 1, is amended to read:  
    Subdivision 1.  [USE OF LICENSED LABORATORY REQUIRED.] (a) 
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 licensed by the commissioner 
under this subdivision, except that, a breath test as an initial 
screening test for alcohol may be performed by a medical clinic, 
hospital, or other medical facility not owned or operated by the 
employer that does not meet the licensing requirements of this 
section, provided that the breath test meets the standards or 
requirements adopted by rule under paragraph (b), except clause 
(1), and any confirmatory test is performed according to the 
requirements of sections 181.950 to 181.957 and the rules 
adopted thereunder. 
    (b) The commissioner shall adopt rules by January 1, 1988, 
governing: 
    (1) standards for licensing, suspension, and revocation of 
a license; 
    (2) body component samples that are appropriate for drug 
and alcohol testing; 
    (3) procedures for taking a sample that ensure privacy to 
employees and job applicants to the extent practicable, 
consistent with preventing tampering with the sample; 
    (4) methods of analysis and procedures to ensure reliable 
drug and alcohol testing results, including standards for 
initial screening tests and confirmatory tests;  
    (5) threshold detection levels for drugs, alcohol, or their 
metabolites for purposes of determining a positive test result;  
    (6) chain-of-custody procedures to ensure proper 
identification, labeling, and handling of the samples being 
tested; and 
    (7) retention and storage procedures to ensure reliable 
results on confirmatory tests or confirmatory retests of 
original samples. 
    (c) With respect to paragraph (b), clause (4), the rules 
must allow testing for alcohol by breath test as an initial 
screening test, provided that the results are confirmed by blood 
analysis. 
    (c) (d) The commissioner shall also grant licenses to 
laboratories conducting drug and alcohol testing that are 
located in another state, provided that either:  (1) the 
laboratory is licensed by the other state or by a federal agency 
to conduct drug and alcohol testing and the other state's or 
federal agency's rules governing standards, methods, and 
procedures meet or exceed those adopted under this subdivision; 
or (2) the laboratory has agreed in writing with the 
commissioner to comply with the rules adopted under this 
subdivision.  A laboratory licensed under this paragraph must 
also, as a condition of obtaining and retaining a license, agree 
in writing with the commissioner to comply with the other 
requirements for laboratories set forth in sections 181.950 to 
181.954 and to be subject to the remedies set forth in section 
181.956. 
    (d) (e) The commissioner shall charge laboratories an 
annual license fee.  The fee may vary depending on the number of 
Minnesota employee samples tested annually at a laboratory.  Fee 
receipts must be deposited in the state treasury and credited to 
a special account and are appropriated to the commissioner to 
administer this subdivision and to purchase or lease laboratory 
equipment as accumulated fee receipts make equipment purchases 
or leases possible.  Notwithstanding section 144.122, the 
commissioner shall set the license fee at an amount so that the 
total fees collected will recover the costs of administering 
this subdivision and allow an additional amount to be credited 
to the special account each year sufficient to allow the 
commissioner to obtain appropriate laboratory equipment for use 
in administering this subdivision by July 1, 1994. 
    Sec. 3.  Minnesota Statutes 1987 Supplement, section 
181.953, subdivision 2, is amended to read:  
    Subd. 2.  [TRANSITIONAL LABORATORY REQUIREMENTS.] Before 
rules are adopted and licenses issued under subdivision 1, an 
employer may use the services of a nonlicensed testing 
laboratory that agrees in writing with the commissioner to 
comply with the following requirements: 
    (1) The director of the laboratory must be a full-time 
employee of the laboratory and must possess a doctoral or 
master's degree in biological or medical science and have at 
least three years experience in an analytical toxicology 
laboratory.  
    (2) The laboratory must be participating in and continuing 
to demonstrate satisfactory performance in the drug proficiency 
testing program of the college of American pathology or American 
association for clinical chemists. 
    (3) The drug and alcohol testing must be limited to 
analysis of a sample of blood or urine from the employer or job 
applicant subject to testing; except that testing for alcohol 
may include a breath test as an initial screening test, provided 
that the results are confirmed by blood analysis.  A breath test 
may be performed by a laboratory that does not meet the 
requirements of this subdivision, as allowed under subdivision 1.
    (4) The methods of analysis for drug and alcohol testing 
are limited to any combination of methods using immuno-chemical 
technology or chromatography for initial screening 
tests, confirmed except as otherwise allowed under clause (3).  
Confirmation must be by gas chromatography/mass spectrometry; 
except that, where gas chromotography/mass chromatography/mass 
spectrometry is not the scientifically accepted method of 
choice, the test must be confirmed by a method using some form 
of chromatography.  Testing for alcohol may include a breath 
test as an initial screening test, provided that the results are 
confirmed by blood analysis. 
    (5) The laboratory must have in writing and use laboratory 
chain-of-custody procedures that ensure reliable and properly 
handled and identified testing results. 
    (6) All initial screening test, confirmatory test, and 
confirmatory retest results must be reviewed and certified as 
accurate by a qualified scientist. 
    (7) A test report must indicate the drugs, alcohol, or 
their metabolites tested for and whether the test produced 
negative or positive test results. 
    (8) The laboratory must provide the commissioner with 
information requested by the commissioner regarding the 
laboratory's current operations and activities relating to drug 
and alcohol testing. 
    (9) The laboratory must agree to comply with the 
requirements for laboratories set forth in sections 181.950 to 
181.954 and to be subject to the remedies set forth in section 
181.956. 
     Sec. 4.  [EFFECTIVE DATE.] 
    This act is effective the day following final enactment. 
    Approved April 14, 1988

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