I

103D CONGRESS

1ST SESSION H. R. 377

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 5, 1993

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

Committees on Energy and Commerce, Education and Labor, and Post

Office and Civil Service

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 of

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. PUBLIC HEALTH SERVICE ACT.

5 (a) DRUG TESTING.—The Public Health Service Act

6 is amended—

7 (1) by redesignating title XXVI (42 U.S.C.

8 300cc et seq.) as title XXVII, and

9 (2) by inserting after title XXV (42 U.S.C.

10 300bb–1 et seq.) the following new title:

11 ‘‘TITLE XXVI—QUALITY

12 ASSURANCE IN DRUG TESTING

13 ‘‘SEC. 2601. LABORATORY CERTIFICATION STANDARDS.

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

15 toxicological analysis 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—

22 ‘‘(1) drug screening tests,

23 ‘‘(2) drug confirmatory tests, and

24 ‘‘(3) both drug screening and confirmatory

25 tests.
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1 ‘‘(c) CRITERIA.—In establishing standards for certifi2 cation under subsection (b), the Secretary shall use cri3 teria that will maximize the predictive value of the testing

4 scheme and that take into consideration the practices, pro5 cedures, and experience of drug testing programs which

6 the Secretary determines are conducted in accordance with

7 appropriate standards and procedures.

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

9 the Secretary shall review, and where appropriate revise,

10 the certification criteria established under subsection (b),

11 taking into consideration the relevant scientific technical

12 advances in the area of drug testing and revisions needed

13 to reflect employer zero-drug tolerance practices.

14 ‘‘SEC. 2602. ANTI-DRUG ABUSE POLICY.

15 ‘‘(a) WRITTEN POLICY.—As a condition of imple16 menting or maintaining a drug testing program, an em17 ployer shall establish a written anti-drug abuse policy that

18 shall contain, at a minimum, an explanation concerning

19 the—

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

21 be administered, the procedures for notifying an em22 ployee of a confirmed positive result, and a state23 ment the policy will be administered in a consistent

24 and nondiscriminatory manner without regard to
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1 whether the employee is employed in a management

2 or hourly capacity,

3 ‘‘(2) safeguards established for protecting the

4 privacy of individuals who are subject to testing, in5 cluding chain custody procedures and the limitations

6 on disclosure of the results of drug tests,

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

8 program,

9 ‘‘(4) penalties that may be imposed for a viola10 tion of the anti-drug policy of the employer, and

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

12 employee shall be given a reasonable opportunity to

13 explain a confirmed positive test result.

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

15 effort to provide notice of the written anti-drug abuse pol16 icy to applicants and employees subject to testing using

17 whatever methods the employer determines to be appro18 priate.

19 ‘‘SEC. 2603. DRUG-FREE AWARENESS PROGRAM.

20 ‘‘In order for an employer to be permitted to imple21 ment or maintain a drug testing program, such employer

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

23 drug-free awareness program designed to inform its em24 ployees concerning—
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1 ‘‘(1) the dangers of drug abuse, both inside and

2 outside of the workplace,

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

4 a drug-free workplace,

5 ‘‘(3) information as to the existence and avail6 ability of counseling, employee assistance, rehabilita7 tion, and other drug abuse treatment programs of

8 which the employer is aware, and

9 ‘‘(4) the penalties that may be imposed on ap10 plicants and employees who test positive for the use

11 of a drug, and for the manufacture, distribution, dis12 pensation, possession, or use of a drug in the work13 place of the employer.

14 ‘‘SEC. 2604. STANDARDS FOR DRUG TESTING.

15 ‘‘(a) APPLICANTS.—Nothing in this title shall be con16 strued to prohibit an employer from requiring, as a condi17 tion of employment, that an applicant submit to and pass

18 a drug test based on criteria established by the employer

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

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

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

22 ‘‘(b) EMPLOYEES.—Nothing in this title shall be con23 strued to prohibit an employer from requiring an employee

24 to submit to and pass a drug test—
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1 ‘‘(1) where the employer has reasonable sus2 picion to believe that the employee is using or under

3 the influence of a drug,

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

5 a scheduled medical examination,

6 ‘‘(3) in the case of an accident or incident in7 volving the actual or potential loss of human life, se8 rious bodily injury, or significant property damage,

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

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

11 drug abuse treatment program, or

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

13 work units, locations, or facilities where drug abuse

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

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

16 ‘random’ means the selection of individuals for testing

17 based on a nondiscriminatory impartial methods so that

18 no employee is harassed or treated differently from other

19 employees in similar circumstances.

20 ‘‘SEC. 2505. EMPLOYEE PROTECTIONS.

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

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

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

24 efforts to inform the applicant or employee as to the

25 drug testing policy of the employee,
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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 a 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.
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1 ‘‘SEC. 2606. CONFIDENTIALITY.

2 ‘‘(a) IN GENERAL.—An individual, other than the ap3 plicant or employee who is the subject of a drug test, shall

4 not disclose information obtained as a result of a drug

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

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

7 individual conducting a drug test on behalf of an em8 ployer, may disclose information acquired from a drug test

9 only to—

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

11 drug test or any other individual specifically des12 ignated in writing by such applicant or employee

13 taking such drug test,

14 ‘‘(2) the employer, including the designated rep15 resentative of such employer, that requested such

16 test,

17 ‘‘(3) any court, governmental agency, arbitra18 tor, or mediator, in accordance with Federal or

19 State law, and

20 ‘‘(4) appropriate drug abuse treatment provid21 ers.

22 ‘‘SEC. 2607. EMPLOYER PRACTICES.

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

24 be construed to prohibit an employer from taking action

25 necessary to ensure a safe workplace.
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1 ‘‘(b) DRUG-FREE WORKPLACE.—Nothing in this title

2 shall be construed to prohibit an employer from taking ac3 tion necessary, up to and including termination, in the

4 case of applicant or employee—

5 ‘‘(1) whose drug test result is confirmed posi6 tive,

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

8 under this title, or

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

10 testing specimen.

11 ‘‘(c) PARTICIPATION IN DRUG ABUSE TREATMENT

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

13 prohibit an employer from requiring an employee to par14 ticipate in, and satisfactorily complete, a drug treatment

15 program as a condition of continued employment where

16 the employee has tested confirmed positive for drugs, has

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

18 or adulterated a drug test specimen.

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

20 shall be construed to prohibit an employer from refusing

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

22 a sensitive position if such employee has tested confirmed

23 positive for drug use.
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1 ‘‘SEC. 2608. DRUG ABUSE TREATMENT PROGRAMS.

2 ‘‘As part of the drug-free awareness program estab3 lished pursuant to section 2603, employers shall provide

4 information to employees concerning the existence and

5 availability of public and private drug counseling, em6 ployee assistance, rehabilitation, and other drug abuse

7 treatment programs of which the employer is aware.

8 ‘‘SEC. 2609. REGULATIONS.

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

10 of this title, the Secretary shall—

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

12 laboratories for the performance of toxicological uri13 nalysis conducted for drug testing programs as de14 scribed in this title, and

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

16 may be necessary or appropriate to carry out this

17 title.

18 ‘‘SEC. 2610. ENFORCEMENT AND RELIEF.

19 ‘‘(a) LABORATORY CERTIFICATION STANDARDS.—

20 The certification program established pursuant to section

21 2601(b) shall be enforced in accordance with the proce22 dures and sanctions contained in subsections (g), (h), (i),

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

24 ‘‘(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL

25 DISCHARGE OR DISCRIMINATION, INVESTIGATION ORDER.
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1 ‘‘(1) COMPLAINT.—An employee who believes

2 that such employee has been charged or otherwise

3 discriminated against by an employer in violation of

4 this title may, not later than 30 days after such ac5 tion occurs, file (or have any individual file on behalf

6 of such employee) a complaint with the Secretary of

7 Labor (hereinafter referred to in this subsection as

8 the ‘Secretary’) alleging that such discharge or dis9 crimination violates this title. On receipt of such

10 complaint, the Secretary shall notify the individual

11 named in the complaint of such filing.

12 ‘‘(2) INVESTIGATION AND ORDER.—

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

14 complaint filed under paragraph (1), the Sec15 retary shall conduct an investigation of the vio16 lation alleged in such complaint. Not later than

17 30 days after the receipt of such complaint, the

18 Secretary shall complete such investigation and

19 shall notify in writing the employer (and any in20 dividual acting on behalf of the employer) as to

21 the results of such investigation.

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

23 after the completion of such investigation, the

24 Secretary shall, unless the proceeding on the

25 complaint is terminated by the Secretary on the
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1 basis of a settlement entered into by the Sec2 retary and the employer alleged to have com3 mitted such violation, issue an order either pro4 viding the relief prescribed in this section or de5 nying the complaint. An order of the Secretary

6 issued under this subparagraph shall be made

7 on the record after notice and opportunity for

8 public hearing.

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

10 filed under paragraph (1), the Secretary determines

11 that a violation of this title has occurred, the Sec12 retary shall order the employer who committed such

13 violation to provide such suitable relief as the Sec14 retary determines appropriate, including reinstate15 ment, promotion, and the payment of lost wages and

16 benefits.

17 ‘‘(4) REVIEW OR ORDER.—An employee or em18 ployer adversely affected or aggrieved by an order is19 sued under paragraph (2) may obtain review of such

20 order in the United States Court of Appeals for the

21 circuit in which the violation, with respect to which

22 the order was issued, allegedly occurred. The peti23 tion for review shall be filed not later than 60 days

24 after the issuance of the order of the Secretary

25 under paragraph (2). Review by the Court of Ap-
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1 peals shall conform to chapter 7 of Title 5, United

2 States Code.

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

4 employer fails to comply with an order issued under

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

6 in the United States court for the district in which

7 the violation was found to occur to enforce such

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

9 this subsection, may award the costs of litigation

10 (including reasonable attorney and expert witness

11 fees) to the prevailing party.

12 ‘‘(c) AFFIRMATIVE DEFENSE.—The good faith com13 pliance of an employer with the standards and procedures

14 established under this title shall constitute an affirmative

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

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

17 construed to require an employer to establish a drug test18 ing program for applicants or employees or make employ19 ment decisions based on such test results.

20 ‘‘SEC. 2611. EFFECT ON OTHER LAWS.

21 ‘‘(a) STATE LAW, SUPERSEDURE.—This title shall

22 preempt any State or local law, rule, regulation, order or

23 standard that applies to the drug testing of an applicant

24 or employee, or that relates to any matter addressed under

25 this title. No State or local government shall adopt or en-
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1 force any law, rule, regulation, ordinance, standard or

2 order relating to—

3 ‘‘(1) the certification of laboratories that per4 form drug testing analysis with respect to such anal5 ysis,

6 ‘‘(2) requirements for the conduct of drug test7 ing under the certification program established

8 under this title,

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

10 drug testing programs, or

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

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

13 shall be construed to prohibit the Secretary of Transpor14 tation or the Nuclear Regulatory Commission from issuing

15 regulations with respect to drug and alcohol testing.

16 ‘‘SEC. 2612. EFFECTIVE DATE.

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

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

19 contained in section 2601(a) shall not take effect less than

20 1 year after establishment of the certification program re21 quired under section 2601(b).

22 ‘‘SEC. 2613. DEFINITIONS.

23 ‘‘As used in this title:

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

25 any individual who has submitted an application to
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1 an employer, whether written or oral, for employ2 ment with such employer.

3 ‘‘(2) DRUG.—The term ‘drug’ means any con4 trolled substance listed in Scheduled I through V of

5 section 202 of the Controlled Substances Act (21

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

7 medication that can interfere with employment per8 formance.

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

10 The term ‘drug abuse treatment program’ means a

11 program, such as an employee assistance program,

12 designed to assist an individual in dealing with prob13 lems caused by drug abuse.

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

15 any test procedure used to take and analyze blood,

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

17 for the purpose of detecting the presence or absence

18 of a drug or its metabolites.

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

20 an individual employed by an employer.

21 ‘‘(f) EMPLOYER.—The term ‘employer’ means an in22 dividual, partnership, corporation, association, or other

23 entity (including the Federal Government), that employs

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

25 affecting commerce.
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1 ‘‘(g) SENSITIVE EMPLOYEE.—The term ‘sensitive

2 employee’ means an individual employed in a position

3 whose duties, as defined by the employer, involve respon4 sibilities affecting such matters as national security,

5 health, or safety, environment, or other responsibilities re6 quiring a high degree of trust and confidence.

7 ‘‘SEC. 2614. PROFESSIONAL ATHLETES.

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

9 be treated in the same manner as employees who meet

10 the definition of section 2614(g), except that professional

11 athletes shall not be covered by section 2606(a).’’.

12 (b) CONFORMING AMENDMENTS.—

13 (1) Sections 2601 through 2614 of the Public

14 Health Service Act (42 U.S.C. 300cc through

15 300cc–15) are redesignated as sections 2701

16 through 2714, respectively.

17 (2)(A) Sections 465(f) and 497 of such Act (42

18 U.S.C. 286(f) and 289(f)) are each amended by

19 striking out ‘‘2601’’ and inserting ‘‘2701’’.

20 (B) Section 305(i) of such Act (42 U.S.C.

21 242c(i)) is amended by striking out ‘‘2611’’ each

22 place it appears and inserting ‘‘2711’’.

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