An Act To Enhance Workplace Safety and Health through Substance Abuse Testing and Treatment
Maine Legislature, Session 122, LD 1361
Committee: Labor
Sponsors: PERRY, MARTIN, DUCHESNE, MARRACHE, MAZUREK, PIOTTI, NUTTING
Amends: 26 MRSA §682, 26 MRSA §683, 26 MRSA §684, 26 MRSA §685

Legislative Document 
No. 1361 
H.P.944 
House of Representatives, March 17, 2005 
An Act To Enhance Workplace Safety and Health through 
Substance Abuse Testing and Treatment 
Reference to the Committee on Labor suggested and ordered printed. 
Presented by Representative PERRY of Calais. 
Cosponsored by Senator MARTIN of Aroostook and 
Il/~ 
/17. 71!1!£~ 
MILLICENT M. MacFARLAND 
Clerk 
Representatives: DUCHESNE of Hudson, MARRACHE of Waterville, MAZUREK of 
Rockland, PIOTTI of Unity, Senator: NUTTING of Androscoggin. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 26 MRSA §682, sub-§2, as amended by PL 1995, c. 324, 
§3, is further amended to read: 
2. 
Employee. 
"Employee" means a person who is permitted, 
required or directed by any employer to engage in any employment 
for consideration of direct gain or profit. --A--pe-:r::-sGB--sepal'at;eEl 
'l'em-emp.eymeR~-w~4~e-~~~~~~~&&~~~r-i&e*~Qi~-BQt; 
Ret:--H.fM.-t-ed--t:e-~-*e-c .. '--eempeRsat:i:eRT--unemp-l-oyment.--eempeRsat;i:eR 
aREl--~~~-~~--leayeT--~&-~-e~eyee--~eF-~-~4~-t;he 
peI'SeR-~e€e4~e6-~-B&&&~~~-aREl-~~-~-mi&imQm-e~--~~y&-BeyeREl 
t;he--~~~~~~4~--~---~h&--BeRe'i:t;T 
A 
person 
separated 
from 
employment whi:*e-~-9(}&-~-a-~-BeRe~i:t; is an employee 
for a-mi:Ri:mQM-e' 30 days beyond the separation. 
A. 
A full-time employee is an employee 
who 
customarily 
works 30 hours or more each week. 
Sec. 2. 26 MRSA §682, sub-§5-A is enacted to read: 
5-A. 
Post-accident. 
"Post-accident" means within 8 hours 
following an occurrence involving one or more employees on duty 
or in the 
work~lAce in which there is loss of humAn life or 
serious bodily 
~nJury or property damage apparently involving 
cost or loss greater than $10,000. 
Sec. 3. 26 MRSA §682, sub-§6, ,C, as enac ted by PL 1989, c . 
536, §§1 and 2 and affected by c. 604, §§2 and 3, is amended to 
read: 
C. 
--A-
The mere fact of a single work-related accident.L 
unless 
circumstances 
related to 
the 
accident 
provide 
a 
reasonable basis for 
suspicion of 
impairment or 
of 
the 
influence of a substance of abuse. 
This exclusion does not 
restrict post-accident testing otherwise permitted by this 
subchapter. 
Sec. 4. 26 MRSA §682, sub-§7, ,A, as amended by PL 2001, c. 
556, §1 and PL 2003, c. 689, Pt. B, §6, is further amended to 
read: 
A. 
"Screening test" means an initial substance abuse test 
performed through the use of immunoassay technology, or a 
test 
technology 
of 
similar 
or 
greater 
accuracy 
and 
reliability approved by the Department of Health and Human 
Services under rules adopted under section 687, and that is 
used as 
a preliminary step in detecting the presence of 
substances of abuse. 
(1) 
A screening tes t of an applicant's or employee's 
urine or saliva may 
be 
performed at the point of 
collection through the use of a noninstrumented point 
of collection test device approved by the federal Food 
and Drug Administration. 
Section 683, subsection 5-A 
governs the use of such tests. 
Sec. 5. 26 MRSA §683, sub-§2, 1rB, 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) 
Which 
positions, if any, 
will 
be 
subject 
to 
testing, including any positions subject to random or 
arbitrary testing under section 684, subsection 3. 
For 
applicant testing and probable cause and post-accident 
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 section 684, subsection 3; 
Sec. 6. 26 MRSA §684, sub-§2-A is enacted to read: 
2-A. 
Post-accident 
testing. 
An 
employer 
may 
require, 
request 
or 
suggest 
that 
a 
surviving 
employee 
submit 
to 
a 
post-accident sUQstance aQuse test if the employee while on duty 
or in th~ workplace was involved in an occurrence in which there 
was loss of human life, serious bodily injury or property damage 
apparently involving cost or loss greater than $10,000, unless 
the 
circumstances 
clearly 
show 
that 
the 
employee 
did 
not 
contribute to the cause of the occurrence. 
A post-accident test 
sample 
may 
not 
Qe 
collected 
more 
than 
hours 
after 
the 
occurrence. 
Sec. 7. 26 MRSA §684, sub-§5, as enacted by PL 1989, c. 832, 
§11, is amended to read: 
5. 
Testing upon return to work. 
If an employee who has 
received a confirmed positive result returns to work with the 
same employer, whether or not the employee has participated in a 
rehabilitation 
program 
under 
section 
685, 
subsection 
2, 
the 
employer may require, request or suggest that the employee submit 
to - ~-
subsequent 
s\iBs~aB€e--abu&e--~es~--any-t.-i.me--Be~weeB--9{}..-aays 
aBa--eBe--yea~--af~e~--~Re--aa~e--ef--~Re--empleyee~s--p~ie~--~es~ 
follow-up testing during the 18 months after the date of the 
employee's return to work, in accordance with a written follow-up 
treatment plan provided to the employer by a rehabilitation or 
treatment provider. -'\---t.est. Testing may be administered under 
this 
subsection 
in 
addition 
to 
any 
tests 
conducted 
under 
subsections 2, 2-A and 3. 
AR-~~--may--£eEj-l:l-i-£e7--r-eque-s.t:--e:F 
s~~~est.--t.ha-t.-~~~-&~&m1~-te-a-~~~-~&~-e~:FiR~ 
tRe-~~~~--99-~-a~~F-~~~~-e~-~~-em~leyee~s-~-~--test 
eRly--a&-~~~1G&G-~-~~~-~--aae--aT 
If the returning 
employee holds 
a 
position that would create 
an unreasonable 
threat to the health and safety of the public, the employee or 
coworkers if the employee were under the influence of a substance 
of abuse, testing under the follow-up treatment plan may extend 
oyer 24 months and must proyide for at least 6 follow up tests in 
the first 12 months after return to work. 
Sec. 8. 26 MRSA §685, sub-§2, lrC, as amended by PL 1995, c. 
344, §l, is further amended to read: 
c. 
If 
the 
employee 
chooses 
not 
to 
participate 
in 
a 
rehabilitation program under this subsection, the employer 
may 
take 
any action described in paragraph 
A. 
If the 
employee chooses to participate in a rehabilitation program, 
the following provisions apply. 
(1) 
If the employer has an employee assistance program 
that offers counseling or rehabilitation services, the 
employee 
may 
choose 
to enter 
that 
program at 
the 
employer's 
expense. 
If 
these 
services 
are 
not 
available 
from 
an 
employer's 
employee 
assistance 
program or if the employee chooses not to participate 
in that program, the employee may enter a public or 
private rehabilitation program. 
(a) 
Except to the extent that costs are covered 
by a group health insurance plan, 
tRe-eests-e~-tRe 
p~91ie-~--p~ivat.e-~~~~~~-~-~~e~~am-~--ge 
e~~ally-~~~~~-t.Re-~~-~-empleyee 
if 
the 
employer 
has 
more 
than 
full-time 
employeesT---~A1&--~~~-~-~--app~y--te 
m~Rieipalit.ies-~-~~A&F-pe~-i-t.-i€a~-~~~~-e£ 
tRe-~a~~~-~-aRy-empleye-£-~~~~p~ye&-is 
test.ee--Be€a-l:l6e--~--~~-~~~--aR4--eeRt.:Fellee 
s~9st.aRee-~~~~~~-9y-~~-~~~-QmRi9~6 
~:FaRspe~tat.ieR--~~--~&~1~--A€-t.--~--1991T 
P~91ie-~-~g~-~4~7--~~~~-¥,---~~-~~--tRe 
empleye~-~~~-~~-1R-fiRaaeia~-~~~-sRa~e 
ef--t.ae-~~~~~~~-p&y~~~-aea~e~ieR-plaRTL 
the employer shall pay a portion of the costs of 
the public or private rehabilitation program as 
follows: 
• 
(i) 
For employees with fewer than 2 full 
years 
of 
service 
prior 
to 
the 
confirmed 
positive test, 1/2 of the cost up to $250; 
(ii) 
For employees with 2 to 5 full years of 
service prior to the confirmed positive test, 
1/2 of the cost up to $500; 
(iii) 
For employees with 6 to 15 full years 
of service prior to the confirmed positive 
test, 1/2 of the cost Up to $1,000; and 
(iv) 
For employees with over 15 full years 
of service prior to the confirmed positive 
test, 1/2 of the cost up to $2,QQO. 
This requirement does not apply to municipalities 
or other political subdivisions of the State or to 
any employer when the employee is tested because 
of the alcohol and controlled substance testing 
mandated 
by 
the 
federal 
Omnibus 
Transportation 
Employee Testing Act of 1991, Public Law 102-143, 
Title V. 
If necessary, the employer shall assist 
in 
financing 
the 
cost 
share 
of 
the 
employee 
through a payroll deduction plan. 
(b) 
Except to the extent that costs are covered 
by a group health insurance plan, an employer with 
or fewer full-time employees, a municipality or 
other political subdivision of the State is not 
required to pay for any costs of rehabilitation or 
treatment 
under 
any 
public 
or 
private 
rehabilitation 
program. 
An 
employer 
is 
not 
required to pay for the costs of rehabilitation if 
the employee was tested because of the alcohol and 
controlled 
substance 
testing 
mandated 
by 
the 
federal 
Omnibus 
Transportation 
Employee 
Testing 
Act of 1991, Public Law 102-143, Title V. 
(2) 
Ne An employer may ll.Q..t take any action described 
in paragraph A while an employee is participating in a 
rehabilitation 
program, 
except 
as---p£evieee---iR 
6Qepa£a~£apR--~b-A~-~a4-~-~~-~-empleyet--may 
eRaR~e-~~-empleyee~6-~r*-~~~~--~F-~-ERe 
empleyee-ftem-a€~~¥e-~~-~~-r~~&y-pessi&~e-6aEeEY 
RaBa£eT--~~-as-~~~~~-~-6Qepata~tapR-~~~r-aR 
empleyee~6-pay-~-~~~t~-maY-Re~-~~~-whi~-aR 
empleyee-~~-~r~~~~-iR-~-r~~~it~~-p£e~£amT 
pF9viaea-~~-~~-emp*9yeF-~~-~-Fe~aiFea-~~~-EBe 
emp*9yee--~~---~e£i9a~---~--~£~--Eae--~~--i6 
aBavai*aB*e-f9£-w~~k-~~-~~~~~&&~-~~-FeBaBi*iEaEi9B 
9F--whi..J-e--Eae--eRlpl~-ee--i-~-meai€a.J..J.y--d-i-squa-J.-*ied-.---~Be 
emp*9yee-may-a~Y-~~-~~-~~aG-vaeaEieB-EimeT 
i~-aBYT-~9F-EBe6e-peFi9a6Tl 
(i) 
As provided in subparagraph (2-A): 
(ii) 
That an employer may change the employee' s 
work 
assignment 
to 
reduce 
any 
possible 
safety 
hazard. 
If 
the 
employee 
is 
reassigned, 
the 
employer shall pay the employee the rate of the 
new work assignment until an evaluation conducted 
by 
or 
arranged 
through 
the 
rehabilitation 
or 
treatment 
provider 
concludes 
the 
unreasonable 
safety 
hazard 
has 
abated, 
with 
or 
without 
conditions such as regular or irregular interim 
substance abuse testing during rehabilitation: 
(iii) 
That an employer may suspend the employee 
from active duty to reduce any possible safety 
hazard. 
If 
the 
employee 
is 
suspended, 
the 
~oyer shall 
pay 
the 
employee 
1/2 
of 
the 
emplQyee's regular weekly rate, unless and until 
an evaluation conducted by or arranged through the 
rehabilitation or treatment provider concludes the 
unreasonable safety hazard has 
abated, 
with or 
without conditions such as regular or irregular 
interim 
substance 
abuse 
testing 
during 
rehabilitation: and 
(iv) 
That the employer is not reguired to pay the 
employee 
for periods in which the 
employee is 
unavailable 
for 
work 
for 
the 
purposes 
of 
rehabilitation or while the employee is medically 
disgualified. 
The 
employee 
may 
apply 
normal 
sick 
leave 
and 
vacation time, if any, for these periods. 
(2-A) 
A rehabilitation or treatment provider shall 
promptly notify the employer if the employee fails to 
comply 
with 
the 
prescribed 
rehabilitation 
program 
before the expiration of the 6-month period provided in 
paragraph B. 
Upon receipt of this notice, the employer 
may take any action described in paragraph A. 
(3) 
Except as provided in divisions (a) and (b), upon 
successfully completing the rehabilitation program, as 
determined by the rehabilitation or treatment provider 
after consultation with the employer, the employee is 
entitled to return to the employee's previous job with 
full pay and benefits unless conditions unrelated to 
the employee's previous confirmed positive result make 
the employee's return impossible. 
Reinstatement of the 
employee 
ffiQS~ may not conflict with any provision of a 
collective bargaining agreement between the employer 
and 
a 
labor 
organization 
that 
is 
the 
collective 
bargaining representative of the unit of which the 
employee is or would be a part. 
If the rehabilitation 
or treatment provider determines that the employee has 
not successfully completed the rehabilitation program 
within 
months 
after 
starting 
the 
program, 
the 
employer may take any action described in paragraph A. 
(a) 
If 
the 
employee 
who 
has 
completed 
rehabilitation previously worked in 
aR--emp.le7"ffieB~ 
p9S~~~9R-~~-~~-FaRQ9ffi-~~-~~~~~~--~es~iB~ 
QBeeF-~-effip*9yeF~s-~~~~~-p9±ieYT-~~-effip*9yeF 
ffiay-~e~~~e-~~~~~-~»e-effip*97"ee-~~~~~~-~-~Re 
p!:'evi9Qs--~---i..f--~fl.e--effip19yeF--he-l-iewH;--~-hat--~Re 
effip±9yee-~-~e--aR-~r~~-~~~--Raga!:'e 
BeeaQSe--&f--t-he--RaEQ!:'e--&f--~-p9Si~i9R a position 
that would create an unreasonable threat to the 
health and safety of the public, the employee or 
coworkers if the employee were under the influence 
of a substance of abuse, the employer may refuse 
to allow the employee to return to the previous 
job if the employer believes that the employee 
might pose an unreasonable safety hazard because 
of the nature of the position. 
The employer shall 
attempt to find suitable work for the employee 
immediately after refusing the employee's return 
to the previous position. 
:W9--~I::-i-<m--may--Be 
ffiaee---i~-~»e-~~~~-~~~~&-Befie~i~~-~--!:'a~e 
e~--pay-~~~-~~~-~~~--~~-w9£k--9!:, 
wRi*e--~~~~--~--a--pe~~~~efi--~~---~&--ERe 
p!:'evi9Q~---jeBT 
The 
employee 
sRa±l 
must 
be 
reinstated to the previous position or to another 
position with 
an 
equivalent 
rate 
of 
pay 
and 
benefits and with no loss of seniority after an 
evaluation conducted by or arranged through the 
rehabilitation 
or 
treatment 
provider 
concludes 
that the unreasonable safety hazard has abated, or 
in any event wi thin 6 months after returning to 
work in any capacity with the employer unless the 
employee 
has 
received 
a 
subsequent 
confirmed 
positive 
result within that 
time 
from 
a 
test 
administered 
under 
this 
subchapter 
or 
unless 
The bi1l: 
conditions unrelated to the employee's previous 
confirmed 
positive 
test 
result 
make 
that 
reinstatement 
or 
reassignment 
impossible. 
Placement of the employee in suitable work 
and 
reinstatement may not conflict with any provision 
of a collective bargaining agreement between the 
employer 
and 
a 
labor organization that is the 
collective bargaining representative of the unit 
of which the employee is or would be a part. 
(b) 
Notwithstanding division (a), if an employee 
who has successfully completed rehabilitation is 
medically 
disqualified, 
the 
employer 
is 
not 
required 
to 
reinstate 
the 
employee 
or 
find 
suitable work for the employee during the period 
of disqualification. 
The employer is not required 
to compensate the employee during the period of 
disqualification. 
Immediately 
after 
the 
employee's 
medical 
disqualification ceases, 
the 
employer's obligations under division (a) attach 
as if the 
employee 
had 
successfully 
completed 
rehabilitation on that date. 
SUMMARY 
1. 
Allows for post-accident testing when death, 
serious 
injury or substantial property damage has occurred, separate and 
apart from probable cause or random testing; 
2. 
Permits the employer to require, 
request or suggest 
subsequent follow-up testing of an employee returning to work 
during the 18 months after the date of the employee's return to 
work; 
3. 
Allows 
for 
point-of-collection 
screening 
employees. 
Confirmation 
of 
positive 
tests 
would 
required in the existing manner; 
tests 
still 
of 
be 
4. 
Amends the exclusion of a single work-related accident 
as probable cause for testing when circumstances surrounding a 
single work-related accident may give rise to probable cause to 
test, even if the harm from the accident is not so severe as to 
warrant general post-accident testing; 
5. 
Sets 
reasonable 
limits 
on 
the 
currently 
open-ended 
shifting of uninsured treatment or rehabilitation costs, based on 
an 
employee's 
length 
of 
service 
and 
incorporates 
changes 
recognizing that outpatient treatment is often the recommended 
approach; 
6. 
Permits a program of follow-up testing after return to 
work following a confirmed positive test, as recommended by a 
rehabilitation or treatment provider. 
The statutes currently 
permit only a single follow-up test in the period between 90 days 
and one year after the employee's positive prior test. 
This 
change would permit a program of follow-up testing in the 12 
months following a confirmed positive test, under circumstances 
similar 
to 
those 
now 
used 
for 
drivers 
of 
commercial 
motor 
vehicles under the Federal Motor Carrier Safety Regulations; and 
7. 
Amends the provisions requiring return of an employee 
with 
a 
confirmed positive test result to 
a 
safety-sensitive 
position 
and 
insulating 
the 
employee 
from 
any 
financial 
consequences. 
The existing law requires that, if due 
to 
a 
perceived safety hazard an employee is not immediately returned 
to the safety-sensitive position, the employer must nonetheless 
pay the rate of the safety-sensitive job even though that job is 
not being performed. 
This change would provide employers greater 
flexibility to temporarily reassign such persons to other duties 
at the rates of pay corresponding to the new positions. 
As soon 
as the employee's rehabilitation or treatment provider concludes 
the unreasonable safety hazard has abated, the employee must be 
restored to full pay.