An Act To Remove the Requirement That Employers Offer Substance Abuse Services to Employees Who Fail Drug Tests
Maine Legislature, Session 125, LD 1241
Committee: Labor, Commerce, Research and Economic Development
Sponsors: BICKFORD, ROSEN, BEAULIEU, BURNS, ESPLING, GIFFORD, MALABY, TUTTLE, WEAVER, WINTLE
Amends: 26 MRSA §682, 26 MRSA §684, 26 MRSA §685

Legislative Document 
No. 1241 
H.P. 932 
House of Representatives, March 22, 2011 
An Act To Remove the Requirement That Employers Offer 
Substance Abuse Services to Employees Who Fail Drug Tests 
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative BICKFORD of Auburn. 
Cosponsored by Senator ROSEN of Hancock and 
Representatives: BEAULIEU of Auburn, BURNS of Whiting, ESPLING of New Gloucester, 
GIFFORD of Lincoln, MALABY of Hancock, TUTTLE of Sanford, WEAVER of York, 
WINTLE of Garland. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  26 MRSA §682, sub-§6, as enacted by PL 1989, c. 536, §§1 and 2 and 
affected by c. 604, §§2 and 3, is amended to read: 
6.  Probable cause.  "Probable cause" means a reasonable ground for belief in the 
existence of facts that induce a person to believe that an employee may be under the 
influence of a substance of abuse, provided except that the existence of probable cause 
may not be based exclusively on any of the following: 
A.    Information received from an anonymous informant; or 
B.    Any information tending to indicate that an employee may have possessed or 
used a substance of abuse off duty, except when the employee is observed possessing 
or ingesting any substance of abuse either while on the employer's premises or in the 
proximity of the employer's premises during or immediately before the employee's 
working hours; or. 
C.    A single work-related accident. 
Sec. 2.  26 MRSA §684, sub-§2-A is enacted to read: 
2-A.  Accidents.  An employer may require, request or suggest that an employee 
submit to a substance abuse test if the employee causes a work-related accident in which 
property damage, bodily injury or loss of life occurs or if the employee receives a citation 
or summons as a result of the accident from a law enforcement officer. 
Sec. 3.  26 MRSA §684, sub-§3, ¶B, as amended by PL 2003, c. 547, §2, is 
further amended to read: 
B.    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 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 construed; or 
Sec. 4.  26 MRSA §684, sub-§3-A is enacted to read: 
3-A.  Random or arbitrary testing of supervisory personnel and employer.  An 
employer that requires, requests or suggests that an employee submit to random or 
arbitrary substance abuse testing under subsection 3 must also require, request or suggest 
that supervisory personnel submit to a substance abuse test on a random or arbitrary 
basis, and similarly submit to a substance abuse test on a random or arbitrary basis.  The 
substance abuse testing program for supervisory personnel and the employer must be 
established in compliance with this subchapter and, to the extent possible, consistent with 
the written policy required by section 683, subsection 2, except that an employer must 
consult with the employer's supervisory personnel in the development of a substance 
abuse testing policy under this subsection.  The employer must adhere to the same written 
policy for random or arbitrary testing that the Department of Labor approves for the 
employer's supervisory personnel. 
Sec. 5.  26 MRSA §684, sub-§4, as enacted by PL 1989, c. 536, §§1 and 2 and 
affected by c. 604, §§2 and 3, is amended to read: 
4.  Testing while undergoing rehabilitation or treatment.  While the employee is 
participating in a substance abuse rehabilitation program either as a result of voluntary 
contact with or mandatory referral to the employer's employee assistance program or after 
a confirmed positive result as provided in section 685, subsection 2, paragraphs B and C, 
substance abuse testing may be conducted by the rehabilitation or treatment provider as 
required, requested or suggested by that provider. 
A.  Substance abuse testing conducted as part of such a rehabilitation or treatment 
program is not subject to the provisions of this subchapter regulating substance abuse 
testing. 
B.  An employer may not require, request or suggest that any substance abuse test be 
administered to any employee while the employee is undergoing such rehabilitation 
or treatment, except as provided in subsections 2 and 3. 
C.  The results of any substance abuse test administered to an employee as part of 
such a rehabilitation or treatment program may not be released to the employer. 
Sec. 6.  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 a subsequent substance abuse 
test anytime between 90 days and one year after the date of the employee's prior test.  A 
test may be administered under this subsection in addition to any tests conducted under 
subsections 2 and 3.  An employer may require, request or suggest that an employee 
submit to a substance abuse test during the first 90 days after the date of the employee's 
prior test only as provided in subsections 2 and 3. 
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 to hire an applicant for employment or refusal to place an applicant 
on a roster of eligibility; 
(2)  Discharge of an employee; 
(3)  Discipline of an employee; or 
(4)  Change in the employee's work assignment.; and 
(5)  Provision of an opportunity for an employee to participate for up to 6 months 
in a rehabilitation program. 
Sec. 8.  26 MRSA §685, sub-§2, ¶B, as amended by PL 2003, c. 547, §3, is 
repealed. 
Sec. 9.  26 MRSA §685, sub-§2, ¶C, as amended by PL 1995, c. 344, §1, is 
repealed. 
Sec. 10.  26 MRSA §685, sub-§2, ¶D, as enacted by PL 1989, c. 536, §§1 and 2 
and affected by c. 604, §§2 and 3, is amended to read: 
D.  This subsection does not require an employer to take any disciplinary action 
against an employee who refuses to submit to a test, or receives a single or repeated 
confirmed positive result or does not choose to participate in a rehabilitation program.  
This subsection is intended to set minimum opportunities for an employee with a 
substance abuse problem to address the problem through rehabilitation.  An employer 
may offer additional opportunities, not otherwise in violation of this subchapter, for 
rehabilitation or continued employment without rehabilitation. 
Sec. 11.  26 MRSA §685, sub-§3, ¶A, as enacted by PL 1989, c. 536, §§1 and 2 
and affected by c. 604, §§2 and 3, is amended to read: 
A.  Unless the employee or applicant consents, all information acquired by an 
employer in the testing process is confidential and may not be released to any person 
other than the employee or applicant who is tested, any necessary personnel of the 
employer and a provider of rehabilitation or treatment services under subsection 2, 
paragraph C.  This paragraph does not prevent: 
(1) The release of this information when required or permitted by state or federal 
law, including release under section 683, subsection 8, paragraph D; or 
(2)  The use of this information in any grievance procedure, administrative 
hearing or civil action relating to the imposition of the test or the use of test 
results. 
SUMMARY 
This bill removes the requirement that an employer must provide an opportunity to 
participate in a substance abuse rehabilitation program to an employee after the employee 
has received a confirmed positive result on a substance abuse test.  The bill also requires 
that an employer that requires, requests or suggests that employees submit to substance 
abuse testing on a random or arbitrary basis must also require, request or suggest that 
supervisory personnel submit to a substance abuse test on a random or arbitrary basis and 
similarly submit to substance abuse testing on a random or arbitrary basis. 
The bill also allows an employer to require, request or suggest an employee submit to 
substance abuse testing if the employee causes a work-related accident that results in 
property damage, personal injury or loss of life or a citation or summons being issued to 
the employee by a law enforcement officer.  The bill also removes the provision stating 
that it is the intent of the Legislature to narrowly construe the requirement concerning 
random testing of an employee who works in a position where being under the influence 
of a substance of abuse would place the health and safety of the public or coworkers 
under unreasonable threat.