Address the Policies Relating to Substance Use in the Workplace

Last updated: Jun 18, 2017

Details about this bill
Category: Wage and Labor
Status: Defeated
Sponsor: Senator Andre Cushing, Senate 33 - York County
Session: 128
Bill #: LD 1222




This bill makes changes to the laws governing employment practices concerning substance abuse testing, including the following.

1. It replaces the phrase "substance abuse test" and "substance abuse testing" with "substance use test" and "substance use testing" to reflect current usage.

2. It repeals a section of law that addresses nuclear power plants since there are no operating nuclear power plants in this State.

3. It authorizes an employer that has employees subject to a federally mandated substance use testing program to extend federal drug testing activities to its entire workforce in order to maintain a single testing program and specifies that the employer must prepare a substance use testing plan for employees who are not federally regulated, provide a copy of the plan to the employees and the Department of Labor before testing, follow federal notification and procedural protocols for such employees and annually report the results of testing to the department.

4. It streamlines the current substance use testing policy approval by requiring the Department of Labor to develop a uniform impairment and substance use testing policy applicable to all employers. Employers must certify their adoption of the policy and be approved by the Department of Labor prior to conducting substance use testing.

5. It removes the "probable cause" standard and replaces it with an "impairment detection" standard required before the employer may conduct substance use testing. For employers authorized to conduct substance use testing, only an employer or employee approved for impairment detection by the Department of Labor or a medical person may make an impairment detection. Among other things, this detection may be based on a single work-related accident, unlike the "probable cause" standard under current law. The employer may immediately remove the employee from the workplace pending resolution of the impairment detection.

6. It adds an "impairment determination" process that may be used as an alternative or in addition to a substance use test. Under this process, an occupational health care provider conducts a medical review in order to confirm the impairment detection, which may include a substance use test that includes testing for prescription drugs. If the impairment is confirmed, the employer may take employment action including firing or disciplining the employee, subject to any limitations under the Maine Human Rights Act and any other state or federal law. If the occupational health care provider finds that the employee was not impaired or that such impairment did not pose a safety risk, the employee is entitled to full reinstatement to the employee's position.

7. It adds a violation of an established drug-free workplace policy as grounds for employment action.

8. It adds a first impairment determination to the requirement, applicable to an initial confirmed positive substance use test, that the employer must provide the employee with an opportunity to participate in a treatment program before discharging or disciplining the employee. The time frame for completing the treatment program is reduced from 6 months to 12 weeks, and an employer with between 20 and 50 full-time employees is no longer required to pay half of the costs of the treatment program. An employer with more than 50 full-time employees must pay half of treatment costs not covered by a group health insurance plan when the treatment program is required of the employee.

9. It modifies the current requirement that, prior to establishing a substance use testing program, an employer with over 20 full-time employees have a functioning employee assistance program, instead requiring the program of employers with over 50 full-time employees.

10. It expands the number of establishments that may undertake company-wide random substance use testing by authorizing such testing for companies with 10 or more employees instead of with 50 employees, as is the current standard.

11. It provides that a confirmed positive substance use test may be reported to the employee only by a medical review officer and allows an employee to provide a legitimate medical explanation for a positive test result for legally obtained medications, preventing the medical review officer from reporting a positive test for that substance to the employer.

12. It allows testing laboratories to use federal testing standards to encourage testing of biological samples beyond urine and blood.

13. It adds a new civil violation for any employer noncompliance with the substance use testing laws, for which a fine of not more than $500 for the first violation, $750 for the 2nd violation and $1,000 for 3rd and subsequent violations may be adjudged.