I
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 employ-
ers, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 24, 1995
Mr. SOLOMON introduced the following bill; which was referred to the Commit-
tee 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 with-
in 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Quality Assurance in
Drug Testing Act’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) drug abuse in the workplace is a serious na-
tional problem, and
(2) drug testing can be an effective deterrent to
drug abuse when administered in a manner that pro-
vides for quality assurance.
SEC. 3. QUALITY ASSURANCE IN DRUG TESTING.
The Public Health Service Act (42 U.S.C. 201 et
seq.) is amended by adding at the end the following new
title:
‘‘TITLE XXVII—QUALITY
ASSURANCE IN DRUG TESTING
‘‘SEC. 2701. LABORATORY CERTIFICATION STANDARDS.
‘‘(a) PROHIBITION.—No individual may perform a
toxicological analysis, for purposes of confirming a drug-
testing screen positive, in connection with any drug testing
program that is subject to this title unless such analysis
is conducted in a laboratory certified under subsection (b).
‘‘(b) CERTIFICATION.—Not later than 1 year after
the date of enactment of this title, the Secretary shall es-
tablish a program for certifying laboratories that meet
standards for performing drug confirmatory tests.
‘‘(c) CRITERIA.—In establishing standards for certifi-
cation under subsection (b), the Secretary shall use cri-
teria that will maximize the predictive value of the testing
scheme and that take into consideration the practices, pro-
cedures, and experience of drug testing programs which
the Secretary determines are conducted in accordance with
appropriate standards and procedures.
‘‘(d) PERIODIC REVIEW.—At least once each year,
the Secretary shall review, and where appropriate revise,
the certification criteria established under subsection (b),
taking into consideration the relevant scientific technical
advances in the area of drug testing and revisions needed
to reflect employer zero-drug tolerance practices.
‘‘SEC. 2702. ANTI-DRUG ABUSE POLICY.
‘‘(a) WRITTEN POLICY.—As a condition of imple-
menting or maintaining a drug testing program, an em-
ployer shall establish a written anti-drug abuse policy that
shall contain, at a minimum, an explanation concerning
the—
‘‘(1) circumstances under which a drug test will
be administered, the procedures for notifying an em-
ployee of a confirmed positive result, and a state-
ment the policy will be administered in a consistent
and nondiscriminatory manner without regard to
whether the employee is employed in a management
or hourly capacity,
‘‘(2) safeguards established for protecting the
privacy of individuals who are subject to testing, in-
cluding chain custody procedures and the limitations
on disclosure of the results of drug tests,
‘‘(3) availability of any drug abuse treatment
program,
‘‘(4) penalties that may be imposed for a viola-
tion of the anti-drug policy of the employer, and
‘‘(5) procedures under which an applicant or
employee shall be given a reasonable opportunity to
explain a confirmed positive test result.
‘‘(b) NOTICE.—An employer shall make a reasonable
effort to provide notice of the written anti-drug abuse pol-
icy to applicants and employees subject to testing using
whatever methods the employer determines to be appro-
priate.
‘‘SEC. 2703. DRUG-FREE AWARENESS PROGRAM.
‘‘In order for an employer to be permitted to imple-
ment or maintain a drug testing program, such employer
shall establish, as part of such drug testing program, a
drug-free awareness program designed to inform its em-
ployees concerning—
‘‘(1) the dangers of drug abuse, both inside and
outside of the workplace,
‘‘(2) the policy of the employer of maintaining
a drug-free workplace,
‘‘(3) information as to the existence and avail-
ability of counseling, employee assistance, rehabilita-
tion, and other drug abuse treatment programs of
which the employer is aware, and
‘‘(4) the penalties that may be imposed on ap-
plicants and employees who test positive for the use
of a drug, and for the manufacture, distribution, dis-
pensation, possession, or use of a drug in the work-
place of the employer.
‘‘SEC. 2704. STANDARDS FOR DRUG TESTING.
‘‘(a) APPLICANTS.—Nothing in this title shall be con-
strued to prohibit an employer from requiring, as a condi-
tion of employment, that an applicant submit to and pass
a drug test based on criteria established by the employer
that is designed to achieve a drug-free workplace. Refusal
by an applicant to submit to such a test may be treated
in the same manner as a failure to pass a drug test.
‘‘(b) EMPLOYEES.—Nothing in this title shall be con-
strued to prohibit an employer from requiring an employee
to submit to and pass a drug test—
‘‘(1) where the employer has reasonable sus-
picion to believe that the employee is using or under
the influence of a drug, or has otherwise violated the
employer’s substance-abuse prevention policy,
‘‘(2) where such test is administered as part of
a routine scheduled or periodic medical examination,
‘‘(3) in the case of an accident or incident in-
volving the actual or potential loss of human life, se-
rious bodily injury, or significant property or envi-
ronmental damage,
‘‘(4) during and for a reasonable period of time
(not to exceed 5 years) after the completion of a
drug abuse treatment program, or
‘‘(5) pursuant to a random drug testing pro-
gram whereby all employees subject to random drug
testing have an equal chance of initial selection and
are selected according to a method of selection which
is neutral and nondiscriminatory in nature, and that
all employees in the work unit covered by the ran-
dom drug-testing policy are included in the testing
program.
‘‘SEC. 2705. EMPLOYEE PROTECTIONS.
‘‘(a) PROHIBITIONS.—In the case of an applicant or
employee, it shall be a violation of this title—
‘‘(1) for an employer to fail to make reasonable
efforts to inform the applicant or employee as to the
drug testing policy of the employer,
‘‘(2) for an employer to take any adverse action
based on the unconfirmed positive results of a drug
test, except as provided in subsection (c),
‘‘(3) for an employer, on the request of an ap-
plicant or employee, to fail to provide such applicant
or employee with a reasonable opportunity to be in-
formed of a confirmed positive drug test result, and
‘‘(4) for an employer, on the request of an ap-
plicant or employee, to fail to provide such applicant
or employee with a reasonable opportunity to explain
the results of a confirmed positive test result.
‘‘(b) ANTIRETALIATION PROHIBITION.—It shall be a
violation of this title for an employer to take retaliatory
action against an employee because of the exercise by the
employee of any right granted or protected under this title.
‘‘(c) EXCEPTION
FOR SENSITIVE EMPLOYEES.—
Pending the receipt of the results of a confirmatory drug
test, an employer may transfer or reassign an employee
in a sensitive position to another area or position without
any loss in compensation to such employee if the initial
drug test result is positive. If the confirmatory test of such
employee is negative, such employee shall be entitled to
immediate reinstatement to the position from which such
employee has been transferred or reassigned. If the con-
firmatory test of such employee is positive, and the em-
ployee is in a sensitive position wherein an accident could
cause loss of human life, serious bodily injury, or signifi-
cant property or environmental damage, the employer may
permanently remove the employee from the sensitive posi-
tion and transfer or reassign the employee to an available
nonsensitive position with comparable pay and benefits, or
may take other action, including termination or other ad-
verse employment action, consistent with the employer’s
policy for drug-test positives for employees in sensitive po-
sitions, provided there are not applicable contractual pro-
visions that expressly prohibit such action.
‘‘SEC. 2706. CONFIDENTIALITY.
‘‘(a) IN GENERAL.—An individual, other than the ap-
plicant or employee who is the subject of a drug test, shall
not disclose information obtained as a result of a drug
test, except as provided in subsection (b).
‘‘(b) PERMITTED DISCLOSURES.—An employer, or
individual conducting a drug test on behalf of an em-
ployer, may disclose information acquired from a drug test
only to—
‘‘(1) the applicant or employee taking such
drug test or any other individual specifically des-
ignated in writing by such applicant or employee
taking such drug test,
‘‘(2) the employer, including the designated rep-
resentatives of such employer, that requested such
test,
‘‘(3) any court, governmental agency, arbitra-
tor, or mediator, in accordance with Federal or
State law, and
‘‘(4) appropriate drug abuse treatment provid-
ers.
‘‘SEC. 2707. EMPLOYER PRACTICES.
‘‘(a) SAFE WORKPLACE.—Nothing in this title shall
be construed to prohibit an employer from taking action
necessary to ensure a safe workplace.
‘‘(b) DRUG-FREE WORKPLACE.—Nothing in this title
shall be construed to prohibit an employer from taking ac-
tion necessary, up to and including termination, in the
case of applicant or employee—
‘‘(1) whose drug test result is confirmed posi-
tive,
‘‘(2) who refuses to take a drug test authorized
under this title, or
‘‘(3) who tampers with, adulterates, or sub-
stitutes for, or attempts to tamper with, adulterate,
or substitute for a drug testing specimen.
‘‘(c) PARTICIPATION IN DRUG ABUSE TREATMENT
PROGRAM.—Nothing in this title shall be construed to
prohibit an employer from requiring an employee to par-
ticipate in, and satisfactorily complete, a drug treatment
program as a condition of continued employment where
the employee has tested confirmed positive for drugs, has
refused to submit to a drug test, or has tampered with,
adulterated, or substituted for, or attempted to tamper
with, adulterate, or substitute for a drug test specimen.
‘‘SEC. 2708. DRUG ABUSE TREATMENT PROGRAMS.
‘‘As part of the drug-free awareness program estab-
lished pursuant to section 2703, employers shall provide
information to employees concerning the existence and
availability of public and private drug counseling, em-
ployee assistance, rehabilitation, and other drug abuse
treatment programs of which the employer is aware.
‘‘SEC. 2709. REGULATIONS.
‘‘Not later than 1 year after the date of enactment
of this title, the Secretary shall—
‘‘(1) establish a program for the certification of
laboratories for the performance of toxicological
drug analysis conducted for drug testing programs
as described in this title, and
‘‘(2) issue such other rules and regulations as
may be necessary or appropriate to carry out this
title.
‘‘SEC. 2710. ENFORCEMENT AND RELIEF.
‘‘(a) LABORATORY CERTIFICATION STANDARDS.—
The certification program established pursuant to section
2701(b) shall be enforced in accordance with the proce-
dures and sanctions contained in subsections (g), (h), (i),
(j), (k), and (l) of section 353.
‘‘(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL
DISCHARGE OR DISCRIMINATION; INVESTIGATION ORDER.
‘‘(1) COMPLAINT.—An employee who believes
that such employee has been charged or otherwise
discriminated against by an employer in violation of
this title may, not later than 30 days after such ac-
tion occurs, file (or have any individual file on behalf
of such employee) a complaint with the Secretary of
Labor (hereinafter referred to in this subsection as
the ‘Secretary’) alleging that such discharge or dis-
crimination violates this title. On receipt of such
complaint, the Secretary shall notify the employer
and its designated representatives named in the
complaint of such filing.
‘‘(2) INVESTIGATION AND ORDER.—
‘‘(A) INVESTIGATION.—On receipt of a
complaint filed under paragraph (1), the Sec-
retary shall conduct an investigation of the vio-
lation alleged in such complaint. Not later than
30 days after the receipt of such complaint, the
Secretary shall complete such investigation and
shall notify in writing the employer (and any in-
dividual acting on behalf of the employer) as to
the results of such investigation.
‘‘(B) ORDER.—Not later than 30 days
after the completion of such investigation, the
Secretary shall, unless the proceeding on the
complaint is terminated by the Secretary on the
basis of a settlement entered into by the Sec-
retary and the employer alleged to have com-
mitted such violation, issue an order either pro-
viding the relief prescribed in this section or de-
nying the complaint. An order of the Secretary
issued under this subparagraph shall be made
on the record after notice and opportunity for
public hearing.
‘‘(3) RELIEF.—If, in response to a complaint
filed under paragraph (1), the Secretary determines
that a violation of this title has occurred, the Sec-
retary shall order the employer who committed such
violation to provide such suitable relief as the Sec-
retary determines appropriate, including reinstate-
ment, promotion, and the payment of lost wages and
benefits.
‘‘(4) REVIEW OR ORDER.—An employee or em-
ployer adversely affected or aggrieved by an order is-
sued under paragraph (2) may obtain review of such
order in the United States Court of Appeals for the
circuit in which the violation, with respect to which
the order was issued, allegedly occurred. The peti-
tion for review shall be filed not later than 60 days
after the issuance of the order of the Secretary
under paragraph (2). Review by the Court of Ap-
peals shall conform to chapter 7 of Title 5, United
States Code.
‘‘(5) FAILURE TO COMPLY.—If an employee or
employer fails to comply with an order issued under
paragraph (2), the Secretary may file a civil action
in the United States court for the district in which
the violation was found to occur to enforce such
order. Such court, in issuing any final order under
this subsection, may award the costs of litigation
(including reasonable attorney and expert witness
fees) to the prevailing party.
‘‘(c) EMPLOYER PROTECTION FROM LITIGATION.—
No cause of action is or shall be established under this
title for any person against an employer who has estab-
lished a policy and initiated a drug testing program in ac-
cordance with this title, for any of the following:
‘‘(1) Actions in good faith based on the results
of a ‘positive’ drug test.
‘‘(2) Failure to test for drugs, or failure to test
for a specific drug or other controlled substance.
‘‘(3) Failure to test for, or if tested for, failure
to detect, any specific drug or other substance, any
medical condition, or any mental, emotional, or psy-
chological disorder or condition.
‘‘(4) Termination or suspension of any sub-
stance abuse prevention or testing program or pol-
icy.
‘‘(d) CAUSES
OF ACTION BASED
ON TEST RE-
SULTS.—
‘‘(1) No cause of action is or shall be estab-
lished for any person against an employer who has
established a program of drug testing in accordance
with this title, unless the employer’s action was
based on a ‘false positive’ drug-test result, and the
employer knew or clearly should have known that
the result was in error, and ignored the true test re-
sult because of reckless, malicious, or negligent dis-
regard for the truth and/or the willful intent to de-
ceive or be deceived.
‘‘(3) the ‘false positive’ test result was disclosed
with negligence; and
‘‘(4) all elements of an action for defamation of
character, libel, slander, or damage to reputation as
established by applicable statute or common law, are
satisfied.
‘‘(f) CONSTRUCTION.—Nothing in this title shall be
construed to require an employer to establish a drug test-
ing program for applicants or employees or make employ-
ment decisions based on such test results.
‘‘SEC. 2711. EFFECT ON OTHER LAWS.
‘‘(a) STATE LAW.—This title shall preempt any State
or local law, rule, regulation, order or standard that ap-
plies to the drug testing of an applicant or employee, or
that relates to any matter addressed under this title. No
State or local government shall adopt or enforce any law,
rule, regulation, ordinance, standard or order relating
to—
‘‘(1) the certification of laboratories that per-
form drug testing analysis with respect to such anal-
ysis,
‘‘(2) requirements for the conduct of drug test-
ing under the certification program established
under this title,
‘‘(3) the conducting of employee or applicant
drug testing programs, or
‘‘(4) any other matter relating to this title.
‘‘(b) OTHER FEDERAL LAWS.—Nothing in this title
shall be construed to prohibit the Departments of Trans-
portation, Energy, or Defense, or the Nuclear Regulatory
Commission, or other Federal agencies with authority over
regulated industries or government contractors from issu-
ing regulations with respect to drug and alcohol testing.
This title shall preempt any Federal law, rule, regulation,
order, or standard that applies to the continued employ-
ment or reemployment in a sensitive position of a recover-
ing drug addict or chronic drug abuser, or the reinstate-
ment or rehiring of any employee in a sensitive position
for whom an employer has administered a drug-test con-
sistent with this title that has produced a confirmed posi-
tive drug-test result.
‘‘SEC. 2712. EFFECTIVE DATE.
‘‘This title shall become effective 1 year after the date
of enactment of this title, and the prohibition contained
in section 2701(a) shall not take effect less than 1 year
after establishment of the certification program required
under section 2701(b).
‘‘SEC. 2713. DEFINITIONS.
‘‘As used in this title:
‘‘(1) APPLICANT.—The term ‘applicant’ means
any individual who has submitted an application to
an employer, whether written or oral, for employ-
ment with such employer.
‘‘(2) DRUG.—The term ‘drug’ means any con-
trolled substance listed in Scheduled I through V of
section 202 of the Controlled Substances Act (21
U.S.C. 812), alcohol, steroids, and any other drug or
medication that can interfere with employment per-
formance.
‘‘(3) DRUG
ABUSE
TREATMENT
PROGRAM.—
The term ‘drug abuse treatment program’ means a
program, such as an employee assistance program,
designed to assist an individual in dealing with prob-
lems caused by drug abuse.
‘‘(4) DRUG TEST.—The term ‘drug test’ means
any test procedure used to take and analyze blood,
breath, hair, urine or other body fluids or materials
for the purpose of detecting the presence or absence
of a drug or its metabolites.
‘‘(5) DRUG
TESTING
PROGRAM.—The term
‘drug testing program’ means a drug testing pro-
gram established by an employer.
‘‘(6) EMPLOYEE.—The term ‘employee’ means
an individual employed by an employer.
‘‘(7) EMPLOYER.—The term ‘employer’ means
an individual, partnership, corporation, association,
or other nongovernmental entity that employs one or
more employees, and that is engaged in an industry
affecting commerce.
‘‘(8) SENSITIVE
EMPLOYEE.—The term ‘sen-
sitive employee’ means an individual employed in a
position whose duties, as defined by the employer,
involve responsibilities affecting such matters as na-
tional security, health, safety, environment, or other
responsibilities requiring a high degree of trust and
confidence.
‘‘SEC. 2714. PROFESSIONAL ATHLETES.
‘‘For purposes of this title, professional athletes may
be treated in the same manner as employees who meet
the definition of section 2714(g), except that professional
athletes shall not be covered by section 2706(a).’’.
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HR 1706 IH——2
HR 1706 IH——3