I

104TH CONGRESS

1ST SESSION H. R. 153

To amend the Public Health Service Act to establish Federal standards

to ensure quality assurance of drug testing programs, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 4, 1995

Mr. SOLOMON introduced the following bill; which was referred to the

Committee on Commerce

A BILL

To amend the Public Health Service Act to establish Federal

standards to ensure quality assurance of drug testing

programs, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Quality Assurance in

5 Drug Testing Act’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) drug abuse in the workplace is a serious na9 tional problem, and
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1 (2) drug testing can be an effective deterrent to

2 drug abuse when administered in a manner that pro3 vides for quality assurance.

4 SEC. 3. QUALITY ASSURANCE IN DRUG TESTING.

5 The Public Health Service Act (42 U.S.C. 201 et

6 seq.) is amended by adding at the end the following new

7 title:

8 ‘‘TITLE XXVII—QUALITY

9 ASSURANCE IN DRUG TESTING

10 ‘‘SEC. 2701. LABORATORY CERTIFICATION STANDARDS.

11 ‘‘(a) PROHIBITION.—No individual may perform a

12 toxicological analysis in connection with any drug testing

13 program that is subject to this title unless such analysis

14 is conducted in a laboratory certified under subsection (b).

15 ‘‘(b) CERTIFICATION.—Not later than 1 year after

16 the date of enactment of this title, the Secretary shall es17 tablish a program for certifying laboratories that meet

18 standards for performing—

19 ‘‘(1) drug screening tests,

20 ‘‘(2) drug confirmatory tests, and

21 ‘‘(3) both drug screening and confirmatory

22 tests.

23 ‘‘(c) CRITERIA.—In establishing standards for certifi24 cation under subsection (b), the Secretary shall use cri25 teria that will maximize the predictive value of the testing
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1 scheme and that take into consideration the practices, pro2 cedures, and experience of drug testing programs which

3 the Secretary determines are conducted in accordance with

4 appropriate standards and procedures.

5 ‘‘(d) PERIODIC REVIEW.—At least once each year,

6 the Secretary shall review, and where appropriate revise,

7 the certification criteria established under subsection (b),

8 taking into consideration the relevant scientific technical

9 advances in the area of drug testing and revisions needed

10 to reflect employer zero-drug tolerance practices.

11 ‘‘SEC. 2702. ANTI-DRUG ABUSE POLICY.

12 ‘‘(a) WRITTEN POLICY.—As a condition of imple13 menting or maintaining a drug testing program, an em14 ployer shall establish a written anti-drug abuse policy that

15 shall contain, at a minimum, an explanation concerning

16 the—

17 ‘‘(1) circumstances under which a drug test will

18 be administered, the procedures for notifying an em19 ployee of a confirmed positive result, and a state20 ment the policy will be administered in a consistent

21 and nondiscriminatory manner without regard to

22 whether the employee is employed in a management

23 or hourly capacity,

24 ‘‘(2) safeguards established for protecting the

25 privacy of individuals who are subject to testing, in-
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1 cluding chain custody procedures and the limitations

2 on disclosure of the results of drug tests,

3 ‘‘(3) availability of any drug abuse treatment

4 program,

5 ‘‘(4) penalties that may be imposed for a viola6 tion of the anti-drug policy of the employer, and

7 ‘‘(5) procedures under which an applicant or

8 employee shall be given a reasonable opportunity to

9 explain a confirmed positive test result.

10 ‘‘(b) NOTICE.—An employer shall make a reasonable

11 effort to provide notice of the written anti-drug abuse pol12 icy to applicants and employees subject to testing using

13 whatever methods the employer determines to be appro14 priate.

15 ‘‘SEC. 2703. DRUG-FREE AWARENESS PROGRAM.

16 ‘‘In order for an employer to be permitted to imple17 ment or maintain a drug testing program, such employer

18 shall establish, as part of such drug testing program, a

19 drug-free awareness program designed to inform its em20 ployees concerning—

21 ‘‘(1) the dangers of drug abuse, both inside and

22 outside of the workplace,

23 ‘‘(2) the policy of the employer of maintaining

24 a drug-free workplace,
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1 ‘‘(3) information as to the existence and avail2 ability of counseling, employee assistance, rehabilita3 tion, and other drug abuse treatment programs of

4 which the employer is aware, and

5 ‘‘(4) the penalties that may be imposed on ap6 plicants and employees who test positive for the use

7 of a drug, and for the manufacture, distribution, dis8 pensation, possession, or use of a drug in the work9 place of the employer.

10 ‘‘SEC. 2704. STANDARDS FOR DRUG TESTING.

11 ‘‘(a) APPLICANTS.—Nothing in this title shall be con12 strued to prohibit an employer from requiring, as a condi13 tion of employment, that an applicant submit to and pass

14 a drug test based on criteria established by the employer

15 that is designed to achieve a drug-free workplace. Refusal

16 by an applicant to submit to such a test may be treated

17 in the same manner as a failure to pass a drug test.

18 ‘‘(b) EMPLOYEES.—Nothing in this title shall be con19 strued to prohibit an employer from requiring an employee

20 to submit to and pass a drug test—

21 ‘‘(1) where the employer has reasonable sus22 picion to believe that the employee is using or under

23 the influence of a drug,

24 ‘‘(2) where such test is administered as part of

25 a scheduled medical examination,
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1 ‘‘(3) in the case of an accident or incident in2 volving the actual or potential loss of human life, se3 rious bodily injury, or significant property damage,

4 ‘‘(4) during and for a reasonable period of time

5 (not to exceed 5 years) after the completion of a

6 drug abuse treatment program, or

7 ‘‘(5) in the case of sensitive employee positions,

8 work units, locations, or facilities where drug abuse

9 has been identified as a problem, on a random basis.

10 ‘‘(c) DEFINITION.—As used in this title, the term

11 ‘random’ means the selection of individuals for testing

12 based on a nondiscriminatory impartial methods so that

13 no employee is harassed or treated differently from other

14 employees in similar circumstances.

15 ‘‘SEC. 2505. EMPLOYEE PROTECTIONS.

16 ‘‘(a) PROHIBITIONS.—In the case of an applicant or

17 employee, it shall be a violation of this title—

18 ‘‘(1) for an employer to fail to make reasonable

19 efforts to inform the applicant or employee as to the

20 drug testing policy of the employee,

21 ‘‘(2) for an employer to take any adverse action

22 based on the unconfirmed positive results of a drug

23 test, except as provided in subsection (c),

24 ‘‘(3) for an employer, on the request of an ap25 plicant or employee, to fail to provide such applicant
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1 or employee with a reasonable opportunity to be in2 formed of a confirmed positive drug test result, and

3 ‘‘(4) for an employer, on the request of an ap4 plicant or employee, to fail to provide such applicant

5 or employee with a reasonable opportunity to explain

6 the results of a confirmed positive test result.

7 ‘‘(b) ANTIRETALIATION PROHIBITION.—It shall be a

8 violation of this title for an employer to take retaliatory

9 action against an employee because of the exercise by the

10 employee of any right granted or protected under this title.

11 ‘‘(c) EXCEPTION FOR SENSITIVE EMPLOYEES.—

12 Pending the receipt of the results of a confirmatory drug

13 test, an employer may transfer or reassign an employee

14 in a sensitive position to another area or position without

15 any loss in compensation to such employee if the initial

16 drug test result is positive. If a confirmatory test of such

17 employee is negative, such employee shall be entitled to

18 immediate reinstatement to the position from which such

19 employee has been transferred or reassigned.

20 ‘‘SEC. 2706. CONFIDENTIALITY.

21 ‘‘(a) IN GENERAL.—An individual, other than the ap22 plicant or employee who is the subject of a drug test, shall

23 not disclose information obtained as a result of a drug

24 test, except as provided in subsection (b).
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1 ‘‘(b) PERMITTED DISCLOSURES.—An employer, or

2 individual conducting a drug test on behalf of an em3 ployer, may disclose information acquired from a drug test

4 only to—

5 ‘‘(1) the applicant or employee taking such

6 drug test or any other individual specifically des7 ignated in writing by such applicant or employee

8 taking such drug test,

9 ‘‘(2) the employer, including the designated rep10 resentative of such employer, that requested such

11 test,

12 ‘‘(3) any court, governmental agency, arbitra13 tor, or mediator, in accordance with Federal or

14 State law, and

15 ‘‘(4) appropriate drug abuse treatment provid16 ers.

17 ‘‘SEC. 2707. EMPLOYER PRACTICES.

18 ‘‘(a) SAFE WORKPLACE.—Nothing in this title shall

19 be construed to prohibit an employer from taking action

20 necessary to ensure a safe workplace.

21 ‘‘(b) DRUG-FREE WORKPLACE.—Nothing in this title

22 shall be construed to prohibit an employer from taking ac23 tion necessary, up to and including termination, in the

24 case of applicant or employee—
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1 ‘‘(1) whose drug test result is confirmed posi2 tive,

3 ‘‘(2) who refuses to take a drug test authorized

4 under this title, or

5 ‘‘(3) who tampers with or adulterates a drug

6 testing specimen.

7 ‘‘(c) PARTICIPATION IN DRUG ABUSE TREATMENT

8 PROGRAM.—Nothing in this title shall be construed to

9 prohibit an employer from requiring an employee to par10 ticipate in, and satisfactorily complete, a drug treatment

11 program as a condition of continued employment where

12 the employee has tested confirmed positive for drugs, has

13 refused to submit to a drug test, or has tampered with

14 or adulterated a drug test specimen.

15 ‘‘(d) SENSITIVE POSITION.—Nothing in this title

16 shall be construed to prohibit an employer from refusing

17 to place an employee in, or reinstate such employee, to

18 a sensitive position if such employee has tested confirmed

19 positive for drug use.

20 ‘‘SEC. 2708. DRUG ABUSE TREATMENT PROGRAMS.

21 ‘‘As part of the drug-free awareness program estab22 lished pursuant to section 2703, employers shall provide

23 information to employees concerning the existence and

24 availability of public and private drug counseling, em-
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1 ployee assistance, rehabilitation, and other drug abuse

2 treatment programs of which the employer is aware.

3 ‘‘SEC. 2709. REGULATIONS.

4 ‘‘Not later than 1 year after the date of enactment

5 of this title, the Secretary shall—

6 ‘‘(1) establish a program for the certification of

7 laboratories for the performance of toxicological uri8 nalysis conducted for drug testing programs as de9 scribed in this title, and

10 ‘‘(2) issue such other rules and regulations as

11 may be necessary or appropriate to carry out this

12 title.

13 ‘‘SEC. 2710. ENFORCEMENT AND RELIEF.

14 ‘‘(a) LABORATORY CERTIFICATION STANDARDS.—

15 The certification program established pursuant to section

16 2701(b) shall be enforced in accordance with the proce17 dures and sanctions contained in subsections (g), (h), (i),

18 (j), (k), and (l) of section 353.

19 ‘‘(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL

20 DISCHARGE OR DISCRIMINATION; INVESTIGATION

21 ORDER.—

22 ‘‘(1) COMPLAINT.—An employee who believes

23 that such employee has been charged or otherwise

24 discriminated against by an employer in violation of

25 this title may, not later than 30 days after such ac-
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1 tion occurs, file (or have any individual file on behalf

2 of such employee) a complaint with the Secretary of

3 Labor (hereinafter referred to in this subsection as

4 the ‘Secretary’) alleging that such discharge or dis5 crimination violates this title. On receipt of such

6 complaint, the Secretary shall notify the individual

7 named in the complaint of such filing.

8 ‘‘(2) INVESTIGATION AND ORDER.—

9 ‘‘(A) INVESTIGATION.—On receipt of a

10 complaint filed under paragraph (1), the Sec11 retary shall conduct an investigation of the vio12 lation alleged in such complaint. Not later than

13 30 days after the receipt of such complaint, the

14 Secretary shall complete such investigation and

15 shall notify in writing the employer (and any in16 dividual acting on behalf of the employer) as to

17 the results of such investigation.

18 ‘‘(B) ORDER.—Not later than 30 days

19 after the completion of such investigation, the

20 Secretary shall, unless the proceeding on the

21 complaint is terminated by the Secretary on the

22 basis of a settlement entered into by the Sec23 retary and the employer alleged to have com24 mitted such violation, issue an order either pro25 viding the relief prescribed in this section or de-
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1 nying the complaint. An order of the Secretary

2 issued under this subparagraph shall be made

3 on the record after notice and opportunity for

4 public hearing.

5 ‘‘(3) RELIEF.—If, in response to a complaint

6 filed under paragraph (1), the Secretary determines

7 that a violation of this title has occurred, the Sec8 retary shall order the employer who committed such

9 violation to provide such suitable relief as the Sec10 retary determines appropriate, including reinstate11 ment, promotion, and the payment of lost wages and

12 benefits.

13 ‘‘(4) REVIEW OR ORDER.—An employee or em14 ployer adversely affected or aggrieved by an order is15 sued under paragraph (2) may obtain review of such

16 order in the United States Court of Appeals for the

17 circuit in which the violation, with respect to which

18 the order was issued, allegedly occurred. The peti19 tion for review shall be filed not later than 60 days

20 after the issuance of the order of the Secretary

21 under paragraph (2). Review by the Court of Ap22 peals shall conform to chapter 7 of Title 5, United

23 States Code.

24 ‘‘(5) FAILURE TO COMPLY.—If an employee or

25 employer fails to comply with an order issued under
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1 paragraph (2), the Secretary may file a civil action

2 in the United States court for the district in which

3 the violation was found to occur to enforce such

4 order. Such court, in issuing any final order under

5 this subsection, may award the costs of litigation

6 (including reasonable attorney and expert witness

7 fees) to the prevailing party.

8 ‘‘(c) AFFIRMATIVE DEFENSE.—The good faith com9 pliance of an employer with the standards and procedures

10 established under this title shall constitute an affirmative

11 defense against any complaint filed under subsection (b).

12 ‘‘(d) CONSTRUCTION.—Nothing in this title shall be

13 construed to require an employer to establish a drug test14 ing program for applicants or employees or make employ15 ment decisions based on such test results.

16 ‘‘SEC. 2711. EFFECT ON OTHER LAWS.

17 ‘‘(a) STATE LAW.—This title shall preempt any State

18 or local law, rule, regulation, order or standard that ap19 plies to the drug testing of an applicant or employee, or

20 that relates to any matter addressed under this title. No

21 State or local government shall adopt or enforce any law,

22 rule, regulation, ordinance, standard or order relating

23 to—
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1 ‘‘(1) the certification of laboratories that per2 form drug testing analysis with respect to such anal3 ysis,

4 ‘‘(2) requirements for the conduct of drug test5 ing under the certification program established

6 under this title,

7 ‘‘(3) the conducting of employee or applicant

8 drug testing programs, or

9 ‘‘(4) any other matter relating to this title.

10 ‘‘(b) OTHER FEDERAL LAWS.—Nothing in this title

11 shall be construed to prohibit the Secretary of Transpor12 tation or the Nuclear Regulatory Commission from issuing

13 regulations with respect to drug and alcohol testing.

14 ‘‘SEC. 2712. EFFECTIVE DATE.

15 ‘‘This title shall become effective 2 years after the

16 date of enactment of this title, except that the prohibition

17 contained in section 2701(a) shall not take effect less than

18 1 year after establishment of the certification program re19 quired under section 2701(b).

20 ‘‘SEC. 2713. DEFINITIONS.

21 ‘‘As used in this title:

22 ‘‘(1) APPLICANT.—The term ‘applicant’ means

23 any individual who has submitted an application to

24 an employer, whether written or oral, for employ25 ment with such employer.
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1 ‘‘(2) DRUG.—The term ‘drug’ means any con2 trolled substance listed in Scheduled I through V of

3 section 202 of the Controlled Substances Act (21

4 U.S.C. 812), alcohol, steroids, and any other drug or

5 medication that can interfere with employment per6 formance.

7 ‘‘(3) DRUG ABUSE TREATMENT PROGRAM.—

8 The term ‘drug abuse treatment program’ means a

9 program, such as an employee assistance program,

10 designed to assist an individual in dealing with prob11 lems caused by drug abuse.

12 ‘‘(4) DRUG TEST.—The term ‘drug test’ means

13 any test procedure used to take and analyze blood,

14 breath, hair, urine or other body fluids or materials

15 for the purpose of detecting the presence or absence

16 of a drug or its metabolites.

17 ‘‘(5) EMPLOYEE.—The term ‘employee’ means

18 an individual employed by an employer.

19 ‘‘(f) EMPLOYER.—The term ‘employer’ means an in20 dividual, partnership, corporation, association, or other

21 entity (including the Federal Government), that employs

22 one or more employees, and that is engaged in an industry

23 affecting commerce.

24 ‘‘(g) SENSITIVE EMPLOYEE.—The term ‘sensitive

25 employee’ means an individual employed in a position
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1 whose duties, as defined by the employer, involve respon2 sibilities affecting such matters as national security,

3 health, or safety, environment, or other responsibilities re4 quiring a high degree of trust and confidence.

5 ‘‘SEC. 2714. PROFESSIONAL ATHLETES.

6 ‘‘For purposes of this title, professional athletes may

7 be treated in the same manner as employees who meet

8 the definition of section 2714(g), except that professional

9 athletes shall not be covered by section 2706(a).’’.

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