An Act To Amend the Random Drug Testing Laws
Maine Legislature, Session 121, LD 1760
Committee: Labor
Sponsors: SA VIELLO, MARTIN, COWGER, JENNINGS, MILLS, RICHARDSON, SMITH, THOMPSON, USHER, WATSON
Amends: 26 MRSA §683, 26 MRSA §684, 26 MRSA §685

Legislative Document 
No. 1760 
H.P.1282 
House of Representatives, December 22,2003 
An Act To Amend the Random Drug Testing Laws 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203. 
Received by the Clerk of the House on December 17, 2003. Referred to the Committee on 
Labor pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 401. 
Presented by Representative SA VIELLO of Wilton. 
Cosponsored by Senator MARTIN of Aroostook and 
17/~ 
1I1.1lla£~ 
MILLICENT M. MacFARLAND 
Clerk 
Representatives: COWGER of Hallowell, JENNINGS of Leeds, MILLS of Farmington, 
RICHARDSON of Brunswick, SMITH of Van Buren, THOMPSON of China, USHER of 
Westbrook, WATSON of Bath. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 26 MRSA §683. sub-§2. as amended by PL 200L c. 556, 
§2, is further amended by amending the first paragraph to read: 
2. 
Written policy. 
Before establishing any probable cause 
substance abuse testing program, or, for an employer with fewer 
than 
employees, 
a 
random or arbitrary testing policy, 
an 
employer must develop a written policy in compliance with this 
subchapter providing for, at a minimum: 
Sec. 2. 26 MRSA §683. sub-§2, ,B. as amended by PL 1989, c. 
832, §6, is further amended to read: 
B. 
When 
substance abuse testing may occur. 
The written 
policy must describe: 
(1) 
WR~eR--p~&i~ieBS For those employers with fewer 
than 50 employees, which, if any, will be subject to 
*=e S *= ~B~ 
T - -i~~~ 
-aay-- pe-6.,i-t.,ie£-6- -s-ub-j-e<l-t.- - *=e 
random 
r 
arbitrary testing 
under 
section 
684, 
subsection 
3, 
paragraph 
B. 
For 
those 
employers 
with 
or 
more 
employees, if random or arbitrary testing is used, then 
the policy must state that all employees are subject to 
random 
or 
arbitrary 
testing 
under 
section 
684, 
subsection 3 r 
paragraph C. 
For applicant testing and 
probable cause testing of employees, 
an employer may 
designate that all positions are subject to testing; and 
(2) 
The 
procedure 
to 
be 
followed 
in 
selecting 
employees to be tested on a random or arbitrary basis 
under subsection 2-A and section 684, subsection 3; 
Sec. 3. 26 MRSA §683, sub-§2, as amended by PL 2001, c. 556, 
§2, is further amended by amending the last blocked paragraph to 
read: 
An employer must consult with the employer's employees in the 
development of any portion of a probable cause substance abuse 
testing policy or, for an employer with fewer than 50 employees, 
a random or arbitrary testing policy under this subsection that 
relates to the employees. 
An employer with 50 or more employees 
shall abide by the random or arbitrary testing policy developed 
pursuant to subsection 2-A. 
The employer is not required to 
consult with the employees on those portions of a policy that 
relate only to applicants. 
The employer shall send a copy of the 
final written policy to the Department of Labor for review under 
section 686. 
The employer may not implement the policy until the 
Department of Labor approves the policy. 
The employer shall send 
• 
.. 
• 
• 
a copy of any proposed change 
the 
Department 
of 
Labor 
for 
employer may not implement the 
Labor approves the change. 
in an approved written policy to 
review under 
section 686. 
The 
change until the Department of 
Sec. 4. 26 MRSA §683, sub-§2-A is enacted to read: 
2-A. 
Random or arbitrary testing policy development. 
If an 
employer chooses to establish random or arbitrary testing, then, 
in addition to complying with the reguirements of subsection 2, 
paragraphs C to L, the testing must conform to a policy developed 
pursuant to this subsection. 
A. 
The 
employer 
shall establish 
an 
employee 
committee 
consisting of no 
fewer 
than 10 employees. 
The 
employee 
committee must consist of a cross section of the positions 
employed by that employer. 
The membership of the employee 
committee must include a person from the medical profession, 
including, but not limited to, an allopathic or osteopathic 
physician, 
a 
registered 
or 
practical 
nurse 
or 
a 
nurse 
practitioner. 
If there is not 
a 
medical person in the 
employ 
of 
the 
employer, 
the 
employer 
shall 
obtain 
the 
services of 
a 
person in the medical profession to be 
a 
member of the employee committee created pursuant to this 
paragraph. 
B. 
The employee committee created purs_uant to paragraph A 
shall establish the policy for random or arbitrary testing. 
The 
testing must 
apply 
to all employees, 
regardless 
of 
position. 
The policy must state the freguency of the random 
or arbitrary testing and the 
number 
of employees 
to be 
tested each time. 
C. 
The 
selection of 
employees 
for 
random 
or arbitrary 
testing must be done by the Department of Labor from a list 
of all the employees provided by the employer. 
The list may 
not contain any information from which an employee may be 
identified by the department. 
D. 
The employer must submit the policy to the Department of 
Labor for approval pursuant to section 686. 
The policy may 
not 
be 
implemented 
until 
the 
department 
approves 
the 
policy. 
Changes may be 
made 
to the policy only by the 
employee committee and only after approval by the department. 
This subsection applies only to those employees 
who 
are not 
represented under a collective bargaining agreement and to those 
employers with 50 or more employees. 
Sec. 5. 26 MRSA §683, sub-§3, as amended by PL 1995, c. 324, 
§5, is further amended to read: 
3. 
Copies to employees and applicants. 
The employer shall 
provide each employee with a copy of the written pel~ey probable 
cause substance abuse testing and random or arbitrary testing 
policies approved by the Department of Labor under section 686 at 
least 
days 
before 
any 
portion of 
~Re B 
written policy 
applicable to employees takes effect. 
The employer shall provide 
each employee with a 
copy of any change in a written policy 
approved by the Department of Labor under section 686 at least 60 
days before any portion of the change applicable to employees 
takes effect. 
The Department of Labor may waive the 
60-day 
notice for the implementation of an amendment covering employees 
if the amendment was necessary to comply with the law or if, ln 
the 
judgment 
of 
the 
department, 
the 
amendment 
promotes 
the 
purpose of the law and does not lessen the protection of an 
individual 
employee. 
If 
an 
employer 
intends 
to 
test 
an 
applicant, the employer shall provide the applicant with a copy 
of 
the written 
pel~ey--~aaeF--s~Bsee~~ea--6 pOlicies 
developed 
pursuant 
to 
subsections 
and 
2-A 
before 
administering 
a 
substance abuse test to the applicant. 
The 30-day and 60-day 
notice periods provided for employees under this subsection do 
not apply to applicants. 
Sec. 6. 26 MRSA §684, sub-§3. as amended by PL 2001, c. 706, 
§l, is further amended to read: 
3. 
Random or arbitrary testing of employees. 
In addition 
to testing employees on a probable cause basis under subsection 
2, an employer may require, request or suggest that an employee 
submit to a substance abuse test on a random or arbitrary basis 
if a~-leas~-eae-eE-~Re--Ee±±ewiR~-eeRai~ieRs-is-me~: 
A. 
The 
employer 
and 
the 
employee 
have 
bargained 
for 
provisions 
in 
a 
collective bargaining 
agreement, 
either 
before or after the effective date of this subchapter, that 
provide for random or arbitrary testing of employees. 
A 
random or arbitrary testing program that would result from 
implementation of 
an employer's last best offer is not 
considered 
a 
provision 
bargained 
for 
in 
a 
collective 
bargaining agreement for purposes of this section; eF 
B. 
~Re For emp10yers with fewer than 50 
employees, 
the 
employee works 
in a 
position the nature of which would 
create an unreasonable threat to the health or safety of the 
public 
or 
the 
employee's 
ee-weF*eFs 
coworkers 
if 
the 
employee were under the influence of a substance of abuse. 
It is the intent of the Legislature that the requirements of 
this paragraph be narrowly construedTL-Q£ 
• 
• 
C. 
For 
employers 
random or arbitrary 
developed 
pursuant 
approved pursuant to 
with 
or more employees, 
a written 
substance abuse testing policy has been 
to 
section 
683, 
subsection 
2-A 
and 
section 686. 
Sec. 7. 26 MRSA §685. sub·§2, ~A, as amended by PL 1995, c. 
324, §7, is further amended to read: 
A. 
Subject to any limitation of the Maine Human Rights Act 
or any other state law or federal law, an employer may use a 
confirmed positive result or refusal to submit to a test as 
a factor in any of the following decisions: 
(1) 
Refusal 
refusal 
to 
eligibility; 
to hire 
place 
an 
an applicant 
applicant 
for 
on 
employment 
a 
roster 
or 
of 
(2) 
Discharge of an employee, except as provided ln 
paragraph B; 
(3) 
Discipline of an employee; or 
(4) 
Change in the employee's work assignment. 
Sec. 8. 26 MRS A §685. sub.§2, ~B. as amended by PL 1989, c. 
832, §12, is further amended to read: 
B. 
Before taking any action described in paragraph A in the 
case 
of 
an 
employee 
who 
receives 
an initial 
confirmed 
positive reSUlt, an employer shall provide the employee with 
an opportunity to participate for 
up 
to 
months 
in a 
rehabilitation program designed to enable the employee to 
avoid future use of a substance of abuse and to participate 
in an employee assistance program, if the employer has such 
a program. 
The employer may take any action described in 
paragraph A if the employee receives a subsequent confirmed 
positive result from 
a test administered by the employer 
under this subchapter. 
Sec. 9. 26 MRS A §686, sub·§3 is enacted to read: 
3. 
Selection of employees under random or arbitrary testing 
policy: fees. 
The department, 
upon receipt and approval of a 
policy created pursuant to section 683, 
subsection 2-A, 
shall 
participate in the selection of employees as reguired by section 
683, subsection 2-A, paragraph C. 
The department shall assess 
the employer a fee that offsets the cost to the department of 
reviewing 
random or arbitrary testing pOlicies 
and selecting 
employees to be tested. 
The department shall set the fee by 
routine technical rulemaking pursuant to Title 5, chapter 375, 
subchapter 2-A. 
SUMMARY 
This bill amends the laws regarding substance abuse testing 
of employees in the following ways. 
1. 
It continues the discretion of the employer to require 
random or arbitrary testing of employees but makes the following 
changes: 
A. 
If the 
employer 
has 
or 
more 
employees 
and 
the 
employer chooses to require random or arbitrary substance 
abuse testing, then all employees of the employer who are 
not-covered under a collective bargaining agreement must be 
subject to 
the 
random or arbitrary testing. 
Currently, 
under the Maine Revised Statutes, Title 26, 
section 684, 
subsection 3, only those employees who have bargained for 
random 
or 
arbitrary 
substance 
abuse 
testing 
or 
those 
employees who work "in a position the nature of which would 
create an unreasonable threat to the health or safety of the 
public or the employee's co-workers if the employee were 
under the influence of a substance of abuse" are subject to 
random or arbitrary testing. 
This provision remains true 
for those employers with fewer than 50 employees; 
B. 
For 
those employers with 
or more employees, 
the 
random 
or 
arbitrary 
substance 
abuse 
testing 
policy 
is 
established by 
a 
committee 
consisting 
of 
at 
least 
employees selected by the employer. 
The employees must be 
from 
a 
cross-section 
of 
the 
positions 
employed 
by 
the 
employer. 
The committee must have at least one member who 
is a person in the medical profession, such as a physician 
or nurse. 
If there is no 
such person employed by the 
employer, then the employer must obtain the services of a 
person in the medical profession to serve on the committee; 
C. 
The committee establishes the frequency of testing and 
the number of employees to be tested; 
D. 
The Department of Labor chooses the employees to be 
tested 
from 
a 
list 
of 
all 
employees 
provided 
by 
the 
employer. 
The list provided to the department does 
not 
contain any information that would allow the department to 
identify a specific employee; 
E. 
The policy must be submitted to the Department of Labor 
and approved by the department prior to implementation; and 
• 
.. 
• 
F. 
The 
Department 
of 
Labor 
is required to 
charge 
the 
employer a 
fee to offset the costs of the department in 
administering 
the 
random 
or 
arbitrary 
substance 
abuse 
testing program. 
2. 
It clarifies that an employee who fails 
a 
substance 
abuse test for the first time can not be discharged but must be 
given the opportunity to participate in the employee assistance 
program, if there is one, and a rehabilitation program .