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104TH CONGRESS

1ST SESSION H. R. 1706

To amend the Public Health Service Act to establish Federal standards

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

IN THE HOUSE OF REPRESENTATIVES

MAY 24, 1995

Mr. SOLOMON introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on Economic and

Educational Opportunities, for a period to be subsequently determined by

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Public Health Service Act to establish Federal

standards to ensure quality assurance of drug testing

programs for private employers, 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—
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1 (1) drug abuse in the workplace is a serious na2 tional problem, and

3 (2) drug testing can be an effective deterrent to

4 drug abuse when administered in a manner that pro5 vides for quality assurance.

6 SEC. 3. QUALITY ASSURANCE IN DRUG TESTING.

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

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

9 title:

10 ‘‘TITLE XXVII—QUALITY

11 ASSURANCE IN DRUG TESTING

12 ‘‘SEC. 2701. LABORATORY CERTIFICATION STANDARDS.

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

14 toxicological analysis, for purposes of confirming a drug15 testing screen positive, in connection with any drug testing

16 program that is subject to this title unless such analysis

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

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

19 the date of enactment of this title, the Secretary shall es20 tablish a program for certifying laboratories that meet

21 standards for performing drug confirmatory tests.

22 ‘‘(c) CRITERIA.—In establishing standards for certifi23 cation under subsection (b), the Secretary shall use cri24 teria that will maximize the predictive value of the testing

25 scheme and that take into consideration the practices, pro-
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1 cedures, and experience of drug testing programs which

2 the Secretary determines are conducted in accordance with

3 appropriate standards and procedures.

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

5 the Secretary shall review, and where appropriate revise,

6 the certification criteria established under subsection (b),

7 taking into consideration the relevant scientific technical

8 advances in the area of drug testing and revisions needed

9 to reflect employer zero-drug tolerance practices.

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

11 ‘‘(a) WRITTEN POLICY.—As a condition of imple12 menting or maintaining a drug testing program, an em13 ployer shall establish a written anti-drug abuse policy that

14 shall contain, at a minimum, an explanation concerning

15 the—

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

17 be administered, the procedures for notifying an em18 ployee of a confirmed positive result, and a state19 ment the policy will be administered in a consistent

20 and nondiscriminatory manner without regard to

21 whether the employee is employed in a management

22 or hourly capacity,

23 ‘‘(2) safeguards established for protecting the

24 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, or has otherwise violated the

24 employer’s substance-abuse prevention policy,
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1 ‘‘(2) where such test is administered as part of

2 a routine scheduled or periodic medical examination,

3 ‘‘(3) in the case of an accident or incident in4 volving the actual or potential loss of human life, se5 rious bodily injury, or significant property or envi6 ronmental damage,

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

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

9 drug abuse treatment program, or

10 ‘‘(5) pursuant to a random drug testing pro11 gram whereby all employees subject to random drug

12 testing have an equal chance of initial selection and

13 are selected according to a method of selection which

14 is neutral and nondiscriminatory in nature, and that

15 all employees in the work unit covered by the ran16 dom drug-testing policy are included in the testing

17 program.

18 ‘‘SEC. 2705. EMPLOYEE PROTECTIONS.

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

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

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

22 efforts to inform the applicant or employee as to the

23 drug testing policy of the employer,
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1 ‘‘(2) for an employer to take any adverse action

2 based on the unconfirmed positive results of a drug

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

4 ‘‘(3) for an employer, on the request of an ap5 plicant or employee, to fail to provide such applicant

6 or employee with a reasonable opportunity to be in7 formed of a confirmed positive drug test result, and

8 ‘‘(4) for an employer, on the request of an ap9 plicant or employee, to fail to provide such applicant

10 or employee with a reasonable opportunity to explain

11 the results of a confirmed positive test result.

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

13 violation of this title for an employer to take retaliatory

14 action against an employee because of the exercise by the

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

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

17 Pending the receipt of the results of a confirmatory drug

18 test, an employer may transfer or reassign an employee

19 in a sensitive position to another area or position without

20 any loss in compensation to such employee if the initial

21 drug test result is positive. If the confirmatory test of such

22 employee is negative, such employee shall be entitled to

23 immediate reinstatement to the position from which such

24 employee has been transferred or reassigned. If the con25 firmatory test of such employee is positive, and the em-
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1 ployee is in a sensitive position wherein an accident could

2 cause loss of human life, serious bodily injury, or signifi3 cant property or environmental damage, the employer may

4 permanently remove the employee from the sensitive posi5 tion and transfer or reassign the employee to an available

6 nonsensitive position with comparable pay and benefits, or

7 may take other action, including termination or other ad8 verse employment action, consistent with the employer’s

9 policy for drug-test positives for employees in sensitive po10 sitions, provided there are not applicable contractual pro11 visions that expressly prohibit such action.

12 ‘‘SEC. 2706. CONFIDENTIALITY.

13 ‘‘(a) IN GENERAL.—An individual, other than the ap14 plicant or employee who is the subject of a drug test, shall

15 not disclose information obtained as a result of a drug

16 test, except as provided in subsection (b).

17 ‘‘(b) PERMITTED DISCLOSURES.—An employer, or

18 individual conducting a drug test on behalf of an em19 ployer, may disclose information acquired from a drug test

20 only to—

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

22 drug test or any other individual specifically des23 ignated in writing by such applicant or employee

24 taking such drug test,
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1 ‘‘(2) the employer, including the designated rep2 resentatives of such employer, that requested such

3 test,

4 ‘‘(3) any court, governmental agency, arbitra5 tor, or mediator, in accordance with Federal or

6 State law, and

7 ‘‘(4) appropriate drug abuse treatment provid8 ers.

9 ‘‘SEC. 2707. EMPLOYER PRACTICES.

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

11 be construed to prohibit an employer from taking action

12 necessary to ensure a safe workplace.

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

14 shall be construed to prohibit an employer from taking ac15 tion necessary, up to and including termination, in the

16 case of applicant or employee—

17 ‘‘(1) whose drug test result is confirmed posi18 tive,

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

20 under this title, or

21 ‘‘(3) who tampers with, adulterates, or sub22 stitutes for, or attempts to tamper with, adulterate,

23 or substitute for a drug testing specimen.

24 ‘‘(c) PARTICIPATION IN DRUG ABUSE TREATMENT

25 PROGRAM.—Nothing in this title shall be construed to
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1 prohibit an employer from requiring an employee to par2 ticipate in, and satisfactorily complete, a drug treatment

3 program as a condition of continued employment where

4 the employee has tested confirmed positive for drugs, has

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

6 adulterated, or substituted for, or attempted to tamper

7 with, adulterate, or substitute for a drug test specimen.

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

9 ‘‘As part of the drug-free awareness program estab10 lished pursuant to section 2703, employers shall provide

11 information to employees concerning the existence and

12 availability of public and private drug counseling, em13 ployee assistance, rehabilitation, and other drug abuse

14 treatment programs of which the employer is aware.

15 ‘‘SEC. 2709. REGULATIONS.

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

17 of this title, the Secretary shall—

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

19 laboratories for the performance of toxicological

20 drug analysis conducted for drug testing programs

21 as described in this title, and

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

23 may be necessary or appropriate to carry out this

24 title.
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1 ‘‘SEC. 2710. ENFORCEMENT AND RELIEF.

2 ‘‘(a) LABORATORY CERTIFICATION STANDARDS.—

3 The certification program established pursuant to section

4 2701(b) shall be enforced in accordance with the proce5 dures and sanctions contained in subsections (g), (h), (i),

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

7 ‘‘(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL

8 DISCHARGE OR DISCRIMINATION; INVESTIGATION ORDER.

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

10 that such employee has been charged or otherwise

11 discriminated against by an employer in violation of

12 this title may, not later than 30 days after such ac13 tion occurs, file (or have any individual file on behalf

14 of such employee) a complaint with the Secretary of

15 Labor (hereinafter referred to in this subsection as

16 the ‘Secretary’) alleging that such discharge or dis17 crimination violates this title. On receipt of such

18 complaint, the Secretary shall notify the employer

19 and its designated representatives named in the

20 complaint of such filing.

21 ‘‘(2) INVESTIGATION AND ORDER.—

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

23 complaint filed under paragraph (1), the Sec24 retary shall conduct an investigation of the vio25 lation alleged in such complaint. Not later than

26 30 days after the receipt of such complaint, the
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1 Secretary shall complete such investigation and

2 shall notify in writing the employer (and any in3 dividual acting on behalf of the employer) as to

4 the results of such investigation.

5 ‘‘(B) ORDER.—Not later than 30 days

6 after the completion of such investigation, the

7 Secretary shall, unless the proceeding on the

8 complaint is terminated by the Secretary on the

9 basis of a settlement entered into by the Sec10 retary and the employer alleged to have com11 mitted such violation, issue an order either pro12 viding the relief prescribed in this section or de13 nying the complaint. An order of the Secretary

14 issued under this subparagraph shall be made

15 on the record after notice and opportunity for

16 public hearing.

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

18 filed under paragraph (1), the Secretary determines

19 that a violation of this title has occurred, the Sec20 retary shall order the employer who committed such

21 violation to provide such suitable relief as the Sec22 retary determines appropriate, including reinstate23 ment, promotion, and the payment of lost wages and

24 benefits.
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1 ‘‘(4) REVIEW OR ORDER.—An employee or em2 ployer adversely affected or aggrieved by an order is3 sued under paragraph (2) may obtain review of such

4 order in the United States Court of Appeals for the

5 circuit in which the violation, with respect to which

6 the order was issued, allegedly occurred. The peti7 tion for review shall be filed not later than 60 days

8 after the issuance of the order of the Secretary

9 under paragraph (2). Review by the Court of Ap10 peals shall conform to chapter 7 of Title 5, United

11 States Code.

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

13 employer fails to comply with an order issued under

14 paragraph (2), the Secretary may file a civil action

15 in the United States court for the district in which

16 the violation was found to occur to enforce such

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

18 this subsection, may award the costs of litigation

19 (including reasonable attorney and expert witness

20 fees) to the prevailing party.

21 ‘‘(c) EMPLOYER PROTECTION FROM LITIGATION.—

22 No cause of action is or shall be established under this

23 title for any person against an employer who has estab24 lished a policy and initiated a drug testing program in ac25 cordance with this title, for any of the following:
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1 ‘‘(1) Actions in good faith based on the results

2 of a ‘positive’ drug test.

3 ‘‘(2) Failure to test for drugs, or failure to test

4 for a specific drug or other controlled substance.

5 ‘‘(3) Failure to test for, or if tested for, failure

6 to detect, any specific drug or other substance, any

7 medical condition, or any mental, emotional, or psy8 chological disorder or condition.

9 ‘‘(4) Termination or suspension of any sub10 stance abuse prevention or testing program or pol11 icy.

12 ‘‘(d) CAUSES OF ACTION BASED ON TEST RE13 SULTS.—

14 ‘‘(1) No cause of action is or shall be estab15 lished for any person against an employer who has

16 established a program of drug testing in accordance

17 with this title, unless the employer’s action was

18 based on a ‘false positive’ drug-test result, and the

19 employer knew or clearly should have known that

20 the result was in error, and ignored the true test re21 sult because of reckless, malicious, or negligent dis22 regard for the truth and/or the willful intent to de23 ceive or be deceived.
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1 ‘‘(2) In any claim, including a claim under this

2 title, where it is alleged that an employer’s action

3 was based on a ‘false positive’ test result—

4 ‘‘(A) there is a rebuttable presumption

5 that the test result was valid if the employer

6 complied with the provisions of this title; and

7 ‘‘(B) the employer is not liable for mone8 tary damages if its reliance on a ‘false positive’

9 test result was reasonable and in good faith.

10 ‘‘(3) There is no employer liability for any ac11 tion taken related to a ‘false negative’ drug test.

12 ‘‘(e) LIMITS TO DEFAMATION CAUSES OF ACTION.—

13 No cause of action for defamation of character, libel, slan14 der, or damage to reputation is or shall be established for

15 any person against an employer who has established a pro16 gram of drug testing in accordance with this title, un17 less—

18 ‘‘(1) the results of that test were disclosed to a

19 person other than the employer, an authorized em20 ployee, agent, or representative of the employer, the

21 tested employee, or the tested prospective employee,

22 or the authorized agent or representative of the em23 ployee;

24 ‘‘(2) the information disclosed was a ‘false posi25 tive’ test result;
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1 ‘‘(3) the ‘false positive’ test result was disclosed

2 with negligence; and

3 ‘‘(4) all elements of an action for defamation of

4 character, libel, slander, or damage to reputation as

5 established by applicable statute or common law, are

6 satisfied.

7 ‘‘(f) CONSTRUCTION.—Nothing in this title shall be

8 construed to require an employer to establish a drug test9 ing program for applicants or employees or make employ10 ment decisions based on such test results.

11 ‘‘SEC. 2711. EFFECT ON OTHER LAWS.

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

13 or local law, rule, regulation, order or standard that ap14 plies to the drug testing of an applicant or employee, or

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

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

17 rule, regulation, ordinance, standard or order relating

18 to—

19 ‘‘(1) the certification of laboratories that per20 form drug testing analysis with respect to such anal21 ysis,

22 ‘‘(2) requirements for the conduct of drug test23 ing under the certification program established

24 under this title,
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1 ‘‘(3) the conducting of employee or applicant

2 drug testing programs, or

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

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

5 shall be construed to prohibit the Departments of Trans6 portation, Energy, or Defense, or the Nuclear Regulatory

7 Commission, or other Federal agencies with authority over

8 regulated industries or government contractors from issu9 ing regulations with respect to drug and alcohol testing.

10 This title shall preempt any Federal law, rule, regulation,

11 order, or standard that applies to the continued employ12 ment or reemployment in a sensitive position of a recover13 ing drug addict or chronic drug abuser, or the reinstate14 ment or rehiring of any employee in a sensitive position

15 for whom an employer has administered a drug-test con16 sistent with this title that has produced a confirmed posi17 tive drug-test result.

18 ‘‘SEC. 2712. EFFECTIVE DATE.

19 ‘‘This title shall become effective 1 year after the date

20 of enactment of this title, and the prohibition contained

21 in section 2701(a) shall not take effect less than 1 year

22 after establishment of the certification program required

23 under section 2701(b).

24 ‘‘SEC. 2713. DEFINITIONS.

25 ‘‘As used in this title:
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1 ‘‘(1) APPLICANT.—The term ‘applicant’ means

2 any individual who has submitted an application to

3 an employer, whether written or oral, for employ4 ment with such employer.

5 ‘‘(2) DRUG.—The term ‘drug’ means any con6 trolled substance listed in Scheduled I through V of

7 section 202 of the Controlled Substances Act (21

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

9 medication that can interfere with employment per10 formance.

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

12 The term ‘drug abuse treatment program’ means a

13 program, such as an employee assistance program,

14 designed to assist an individual in dealing with prob15 lems caused by drug abuse.

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

17 any test procedure used to take and analyze blood,

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

19 for the purpose of detecting the presence or absence

20 of a drug or its metabolites.

21 ‘‘(5) DRUG TESTING PROGRAM.—The term

22 ‘drug testing program’ means a drug testing pro23 gram established by an employer.

24 ‘‘(6) EMPLOYEE.—The term ‘employee’ means

25 an individual employed by an employer.
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1 ‘‘(7) EMPLOYER.—The term ‘employer’ means

2 an individual, partnership, corporation, association,

3 or other nongovernmental entity that employs one or

4 more employees, and that is engaged in an industry

5 affecting commerce.

6 ‘‘(8) SENSITIVE EMPLOYEE.—The term ‘sen7 sitive employee’ means an individual employed in a

8 position whose duties, as defined by the employer,

9 involve responsibilities affecting such matters as na10 tional security, health, safety, environment, or other

11 responsibilities requiring a high degree of trust and

12 confidence.

13 ‘‘SEC. 2714. PROFESSIONAL ATHLETES.

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

15 be treated in the same manner as employees who meet

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

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

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