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1991 Minnesota Session Laws

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                         Laws of Minnesota 1991 

                         CHAPTER 60-S.F.No. 550 
           An act relating to health; employee drug testing; 
          clarifying requirements for labs that test employees 
          for drugs; amending Minnesota Statutes 1990, sections 
          181.950, subdivisions 2, 5, 8, and 10; 181.951, 
          subdivision 1; 181.953, subdivisions 1, 3, 5, and 9; 
          and 626.5562, subdivision 5; repealing Minnesota 
          Statutes 1990, sections 181.950, subdivision 3; and 
          181.953, subdivision 2; Minnesota Rules, parts 
          4740.0100 to 4740.1090. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 181.950, 
subdivision 2, is amended to read: 
    Subd. 2.  [CONFIRMATORY TEST; CONFIRMATORY RETEST.] 
"Confirmatory test" and "confirmatory retest" mean a drug or 
alcohol test that uses a method of analysis approved by the 
commissioner allowed under one of the programs listed in section 
181.953, subdivision 1, as being reliable for providing specific 
data as to the drugs, alcohol, or their metabolites detected in 
an initial screening test. 
    Sec. 2.  Minnesota Statutes 1990, 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 approved by the 
commissioner under according to the standards established under 
one of the programs listed in section 181.953, subdivision 1, 
for the purpose of measuring the presence or absence of drugs, 
alcohol, or their metabolites in the sample tested. 
    Sec. 3.  Minnesota Statutes 1990, section 181.950, 
subdivision 8, is amended to read: 
    Subd. 8.  [INITIAL SCREENING TEST.] "Initial screening 
test" means a drug or alcohol test which uses a method of 
analysis approved by the commissioner under one of the programs 
listed in section 181.953, subdivision 1, as being capable of 
providing data as to general classes of drugs, alcohol, or their 
metabolites. 
    Sec. 4.  Minnesota Statutes 1990, section 181.950, 
subdivision 10, is amended to read: 
    Subd. 10.  [POSITIVE TEST RESULT.] "Positive test result" 
means a finding of the presence of drugs, alcohol, or their 
metabolites in the sample tested in levels at or above the 
threshold detection levels set by the commissioner under 
contained in the standards of one of the programs listed in 
section 181.953, subdivision 1. 
    Sec. 5.  Minnesota Statutes 1990, 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 which participates in one of the 
programs listed in section 181.953, subdivision 2 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. 6.  Minnesota Statutes 1990, section 181.953, 
subdivision 1, is amended to read: 
    Subdivision 1.  [USE OF LICENSED, ACCREDITED, OR CERTIFIED 
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. 
    (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. 
    (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 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 54 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 1990, 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. 
    Sec. 8.  Minnesota Statutes 1990, section 181.953, 
subdivision 5, is amended to read: 
    Subd. 5.  [EMPLOYER CHAIN-OF-CUSTODY PROCEDURES.] An 
employer shall comply with the rules adopted by the commissioner 
under subdivision 1 pertaining to chain-of-custody procedures.  
Before those rules are adopted, 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; 
    (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. 9.  Minnesota Statutes 1990, section 181.953, 
subdivision 9, is amended to read: 
    Subd. 9.  [CONFIRMATORY RETESTS.] An employee or job 
applicant may request a confirmatory retest of the original 
sample at the employee's or job applicant's own expense after 
notice of a positive test result on a confirmatory test.  Within 
five working days after notice of the confirmatory test result, 
the employee or job applicant shall notify the employer in 
writing of the employee's or job applicant's intention to obtain 
a confirmatory retest.  Within three working days after receipt 
of the notice, the employer shall notify the original testing 
laboratory that the employee or job applicant has requested the 
laboratory to conduct the confirmatory retest or transfer the 
sample to another laboratory licensed under subdivision 1 to 
conduct the confirmatory retest.  The original testing 
laboratory shall ensure that the chain-of-custody procedures 
adopted by the commissioner under subdivision 1 in subdivision 3 
are followed during transfer of the sample to the other 
laboratory.  The confirmatory retest must use the same drug or 
alcohol threshold detection levels as used in the original 
confirmatory test.  If the confirmatory retest does not confirm 
the original positive test result, no adverse personnel action 
based on the original confirmatory test may be taken against the 
employee or job applicant. 
    Sec. 10.  Minnesota Statutes 1990, section 626.5562, 
subdivision 5, is amended to read: 
    Subd. 5.  [RELIABILITY OF TESTS.] A positive test result 
reported under this section must be obtained from a confirmatory 
test performed by a drug testing laboratory licensed by the 
department of health.  The confirmatory test must meet the 
standards established under section 181.953, subdivision 1, and 
the rules adopted under it which meets the requirements of 
section 181.953, and must be performed according to the 
requirements for performance of confirmatory tests imposed by 
the licensing, accreditation, or certification program listed in 
section 181.953, subdivision 1, in which the laboratory 
participates. 
    Sec. 11.  [RENEWAL OF LICENSE; EXCEPTION.] 
    Any licenses issued by the commissioner of health under 
Minnesota Statutes, section 181.953, and expiring during 1991, 
need not be renewed. 
    Sec. 12.  [REPEALER.] 
    Minnesota Statutes 1990, sections 181.950, subdivision 3; 
and 181.953, subdivision 2; and Minnesota Rules, parts 
4740.0100; 4740.0110; 4740.0120; 4740.0130; 4740.0140; 
4740.0150; 4740.0160; 4740.0170; 4740.1010; 4740.1020; 
4740.1025; 4740.1040; 4740.1050; 4740.1060; 4740.1065; 
4740.1070; 4740.1075; 4740.1080; and 4740.1090, are repealed. 
    Sec. 13.  [EFFECTIVE DATE.] 
    Sections 1 to 12 are effective the day following final 
enactment, except that the changes in section 6 do not apply to 
a laboratory with a current license from the commissioner until 
July 1, 1992. 
    Presented to the governor May 2, 1991 
    Signed by the governor May 6, 1991, 3:18 p.m.

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