An Act To Improve Workplace Safety by Simplifying and Improving Employers' Substance Abuse Policy Requirements
Maine Legislature, Session 127, LD 1384
Committee Amendment CA_B_H625 (House)
Amends: 26 MRSA §681, 26 MRSA §682, 26 MRSA §683, 26 MRSA §684, 26 MRSA §685, 26 MRSA §686, 26 MRSA §689, 26 MRSA §690

COMMITTEE AMENDMENT "B" to H.P. 937, L.D. 1384, Bill, "An Act To 
Improve Workplace Safety by Simplifying and Improving Employers' Substance Abuse 
Policy Requirements" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 26 MRSA §681, as amended by PL 2011, c. 196, § 1, is further amended to 
read: 
§681. Purpose; applicability 
1. Purpose. This subchapter is intended to: 
A. 
Protect the privacy rights of individual employees in the State from undue 
invasion by employers through the use of substance Q9QSe use tests while allowing 
the use of tests when the employer has a compelling reason to administer a test; 
B. Ensure that, when substance aettSe use tests are used, proper test procedures are 
employed to protect the privacy rights of employees and applicants and to achieve 
reliable and accurate results; 
C. Ensure that an employee with a substance abuse problem receives an opportunity 
for rehabilitation and treatment of the disease and returns to work as quickly as 
possible; aae 
D. Eliminate drug use in the workplace~; and 
E. Protect Maine workers from injuries and illnesses caused by impairment in the 
workplace. 
2. Employer discretion. This subchapter does not require or encourage employers 
to conduct substance aettSe use testing of employees or applicants. An employer who 
chooses to conduct such testing is limited by this subchapter, but may establish policies 
whieh that are supplemental to and not inconsistent with this subchapter. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT E" to H.P. 937, L.D. 1384 
3. 
Collective bargaining agreements. 
This subchapter does not prevent the 
negotiation of collective bargaining agreements that provide greater protection to 
employees or applicants than is provided by this subchapter. 
A labor organization with a collective bargaining agreement effective in the State may 
conduct a program of substance almse use testing of its members. The program may 
include testing of new members and periodic testing of all members. It may not include 
random testing of members. The program may be voluntary. The results may not be 
used to preclude referral to a job where testing is not required or to otherwise discipline a 
member. Sample collection and testing must be done in accordance with this subchapter. 
Approval of the Department of Labor is not required. 
4. 
Home rule authority preempted. 
Ne A municipality may not enact any 
ordinance under its home rule authority regulating an employer's use of substance ~ 
use tests. 
5. Contracts for work out of State. All employment contracts subject to the laws 
of this State shall must include an agreement that this subchapter will apply to any 
employer who hires employees to work outside the State. 
6. Medical examinations. This subchapter does not prevent an employer from 
requiring or performing medical examinations of employees or applicants or from 
conducting medical screenings to monitor exposure to toxic or other harmful substances 
in the workplace, pro·,ided that as long as these examinations are not used to avoid the 
restrictions of this subchapter. No &1:1eh An examination may not include the use of any 
substance aease use test except in compliance with this subchapter. 
7. Other discipline unaffected. This subchapter does not prevent an employer from 
establishing rules related to the possession or use of substances of abuse by employees, 
including convictions for drug-related offenses, and taking action based upon a violation 
of any of those rules, except when a substance almse use test is required, requested or 
suggested by the employer or used as the basis for any disciplinary action. 
8. Neele&F poweF pl&Rts; fedeF&I law. The fellowing limitations apply to the 
applieation ohhis st10ehaf)ter. 
A. This sHBehaf)ter does not apply to naelear eleetrieal generating faeilities a:ad their 
em.f)loyees, i-Bekldmg i:naependent eootrastors and employees of mdepeB0eBt 
eontraetors v,rho are working at naelear eleetrieal generating faeilities. 
C. This SHBehapter does oot apply to a:ay efflf)loyer saejeet to a federally mandated 
drag a:ad aleohol testing program, ineklding, eat not limited to, testing mandated ay 
the federal Omftiaas Tra:asportation Employee Testing Aet of 1991, Poolie Lav,r 102 
143, Title V, a:ad its emf)loyees, inelading independent eontraetors and employees of 
independent eoB:traetors v1ho are working fer or at the faeilities of a:a employer v1ho 
is saej eet to saeh a federally mandated arag a:ad aleohol testiag program. 
10. Federally mandated drug and alcohol testing programs. The following 
limitations apply to the application of this subchapter. 
A. This subchapter does not apply to an employee, an independent contractor or an 
employee of an independent contractor who is working for or at the facilities of an 
employer who is subject to a federally mandated drug and alcohol testing program. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT B" to H.P. 937, L.D. 1384 
B. An employer with employees in this State who are subject to a federally mandated 
drug and alcohol testing program may either follow a substance use testing policy 
established in accordance with this subchapter or may choose not to follow this 
subchapter for substance use testing of employees who are not subject to federal 
testing requirements, in which case the employer shall: 
(1) Prepare a substance use testing plan for employees who are not federally 
regulated and provide a copy of that plan to employees and the Bureau of Labor 
Standards prior to testing. The plan must identify the kinds of testing to be 
administered, notification and administration procedures and how confirmed 
positive test results that may be allowable under state law but not federal law will 
be handled for the employees who are not federally regulated. The plan must 
describe a process to ensure, at a minimum, that provisions of 49 Code of Federal 
Regulations, Part 40, Subpart O will be followed to allow employees who are not 
federally regulated and who test positive the opportunity to contact and work 
with substance abuse professionals in evaluation, treatment and return-to-duty 
processes; and 
(2) 
Follow corresponding federal notification provisions and procedural 
protocols for any employees who are not federally regulated and comply with 
section 683, subsection 8, paragraph D in reporting annually the results of 
substance use testing of such employees. 
Sec. 2. 26 MRSA §682, sub-§1-A is enacted to read: 
1-A. Arbitrary testing. "Arbitrary testing" means substance use testing in which 
the freguency of testing and the selection of those being tested are based on a set event, 
including, but not limited to, an employment anniversary or promotion, or are based on 
client-required or site-specific testing, for example when a client reguires testing prior to 
work on a project or specific site. 
Sec. 3. 26 MRSA §682, sub-§3-A, as enacted by PL 1989, c. 832, §4, is amended 
to read: 
3-A. Medically disqualified. "Medically disqualified" means that an employee is 
prohibited by a federal law or regulation, or any rules adopted by the ~ 
Department 
of Public Safety that incorporate any federal laws or regulations related to substance 
aeHSe use testing for motor carriers, from continuing in the employee's former 
employment position due to the result of a substance aeHSe use test conducted under the 
federal law or regulation or the Department of Public Safety rule. 
Sec. 4. 26 MRSA §682, sub-§§3-B to 3-E are enacted to read: 
3-B. Established drug-free workplace policy. "Established drug-free workplace 
policy" means a substance use policy adopted by an employer who has certified to the 
Department of Labor that all affected employees have been notified of the policy and 
have had an opportunity to review the policy and its reguirements. 
3-C. 
Fitness-for-duty evaluation. 
"Fitness-for-duty evaluation" means an 
evaluation to determine whether an individual is in a physical, mental and emotional state 
that enables the employee to perform the essential tasks of that employee's work 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT J?" to H.P. 937, L.D. 1384 
assignment in a manner that does not threaten the safety or health of the employee, 
coworkers or the public or damage to property. 
3-D. Impairment or impaired. "Impairment" or "impaired" means any observed 
abnormality or change in an employee's physical, psychological or physiological 
condition or an event in the work;place that could reasonably lead to the conclusion that 
the employee may behave or perform tasks in a manner that threatens the safety of the 
employee. the employee's coworkers or any other individuals. 
3-E. Medical review officer. "Medical review officer" means a licensed physician 
knowledgeable of. and with clinical experience in, controlled substance abuse disorders, 
deviations of substance use testing specimens and causes of invalid testing results, who is 
responsible for receiving and reviewing laboratory results generated by an employer's 
drug testing program and evaluating medical explanations for certain drug test results. 
"Medical review officer" may include a person qualified to serve as a medical review 
officer under federal drug testing laws, as long as that person meets the requirements of 
this subsection. 
Sec. 5. 26 MRSA §682, sub-§4-A is enacted to read: 
4-A. Occupational health care provider. "Occupational health care provider" 
means an occupational medicine specialist with a wide knowledge of clinical medicine 
who has competencies in areas such as employee work-related injury management, 
periodic regulatory medical evaluations for specific job roles, fitness-for-duty evaluations 
of non-work-related employee conditions and evaluation of other employment-related 
medical concerns. An occupational health care provider may be a physician, physician 
assistant or nurse practitioner or other similar medical professional trained in 
occupational health care. An occupational health care provider may have knowledge of 
the specific nature of the employment functions performed by employees for the specific 
employer. 
Sec. 6. 26 MRSA §682, sub-§6, as enacted by PL 1989, c. 536, §§1 and 2 and 
affected by c. 604, §§2 and 3, is repealed. 
Sec. 7. 26 MRSA §682, sub-§§6-A to 6-D are enacted to read: 
6-A. Random testing. "Random testing" means a method of selecting those to be 
tested in which all persons potentially to be tested have an equal probability of selection 
by chance. 
6-B. Return-to-work agreement. "Return-to-work agreement" means a written 
document that sets forth the expectations that the employer and the employer's employee 
assistance program or a medical professional have of an employee who has completed 
mandated treatment for substance abuse problems. It also sets forth the consequences if 
the expectations are not met. 
6-C. Safety-sensitive task or occupation. "Safety-sensitive task or occupation" 
means a work task or an employee occupation that, based on its nature, machinery, 
location. surroundings or influence upon other operations, could pose a threat to the 
safety of the employee. a coworker or others. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT~" to H.P. 937, L.D. 1384 
6-D. 
Sampling and screening organization. 
"Sampling and screening 
organization" means an entity that is hired by an employer to collect biological samples 
from employees and conduct screening tests for substances of abuse. 
Sec. 8. 26 MRSA §682, sub-§7, as amended by PL 2009, c. 133, §1, is further 
amended to read: 
7. 
Substance use test. 
"Substance aause use test" means any test procedure 
designed to take and analyze body fluids or materials from the body for the purpose of 
detecting the presence of substances of abuse. The term does not include tests designed 
to determine blood-alcohol concentration levels from a sample of an individual's breath. 
A. "Screening test" means an initial substance aettSe use test performed through the 
use of immunoassay technology or a federally recognized substance aettSe use test, 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 test of an applicant'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. 
B. "Confirmation test" means a 2nd substance aease use test that is used to verify the 
presence of a substance of abuse indicated by an initial positive screening test result 
and is a federally recognized substance aettSe use test or is performed through the use 
of liquid or gas chromatography-mass spectrometry. 
C. "Federally recognized substance aettSe use test" means any substance aause use 
test recognized by the federal Food and Drug Administration as accurate and reliable 
through the administration's clearance or approval process, a substance use test 
conducted in accordance with mandated guidelines for federal workplace drug testing 
programs or a substance use test conducted according to protocols and levels 
established by the United States Department of Health and Human Services, 
Substance Abuse and Mental Health Services Administration. 
Sec. 9. 26 MRSA §683, as amended by PL 2011, c. 657, Pt. AA, §72, is further 
amended to read: 
§683. Testing procedures 
Ne An employer may not require, request or suggest that any employee or applicant 
submit to a substance aause use test except in compliance with this section. All actions 
taken under a substance aettSe use testing program shall must comply with this 
subchapter, rules adopted under this subchapter and the emf)leyer's vrritteB uniform 
impairment and substance use testing policy tlflf)Fevea 1:Hlder seetieB 686 developed by 
the Department of Labor pursuant to subsection 2. 
1. Employee assistance program required. Before establishing any substance 
aause use testing program for employees, an employer with over :2-0 50 full-time 
employees must have a functioning employee assistance program. 
COMMITTEE AMENDMENT 
COMMI1TEE AMENDMENT~" to H.P. 937, L.D. 1384 
A. 
The employer may meet this requirement by participating in a cooperative 
employee assistance program that serves the employees of more than one employer. 
B. The employee assistance program must be certified by the Department of Health 
and Human Services under rules adopted pursuant to section 687. The rules must 
ensure that the employee assistance programs have the necessary personnel, facilities 
and procedures to meet minimum standards of professionalism and effectiveness in 
assisting employees. 
2. Uniform impairment and substance use testing policy. Befors estahlishmg any 
sHhstanee ahHse testiag f:!regraHl:, an emf:!leyer mHst aevelef:1 er, as Fe€_1:Hirea HI: seetiea 
684, sl:H)seetiea 3, paragFaf:!h C, mHst af:!f)eiftt aa i:lffif:lleyee eemmittee te aeYelep a 
wnttea f:!eliey ia eelRf:lliaaee with this s1:10ehaf:1ter f:!reYiaiag for On or before January 1, 
2017, the Department of Labor shall adopt by rule a uniform impairment and substance 
use testing policy for adoption by employers. Before establishing any new substance use 
testing program or reactivating an inactive substance use testing policy after January 1, 
2017, an employer shall notify the department that it has adopted the uniform impairment 
and substance use testing policy as set forth in department rules and certify that it will 
carry out all substance use testing activities that are not regulated by the Federal 
Government in accordance with that policy. An employer with an active substance use 
testing policy approved prior to January 1, 2017 may continue to operate under that 
policy but shall certify to the department by no later than January 1, 2018 that the 
employer has adopted the uniform impairment and substance use testing policy. The 
uniform impairment and substance use testing policy developed by the department must 
provide, at a minimum: 
A. The procedure and consequences of an employee's voluntary admission of a 
substance abuse problem and any available assistance, including the availability and 
procedure of the employer's employee assistance program; 
B. When substance ael:lSe use testing may occur. The writtea 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 f:!rebaele eaHse 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; 
C. :.Ale For the collection of samples. 
(1) The collection of any sample for use in a substance ah:ase use test must be 
conducted in a medical facility and supervised by a licensed physician or nurse. 
A medical facility includes a first aid station located at the work site. 
(2) An employer may not require an employee or applicant to remove any 
clothing for the purpose of collecting a urine sample, except that: 
(a) 
An employer may require that an employee or applicant leave any 
personal belongings other than clothing and any unnecessary coat, jacket or 
similar outer garments outside the collection area-;-0F~ 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT~" to H.P. 937, L.D. 1384 
(a) If it is the stanaanl praetiee of an off site medieal faeiliey to reEfHiFe the 
removal of elothiag whea eolleetiag a Hriae Saffif!le for any flHfflOSe, the 
physieian or BlifSe sl:lpervisiag the eolleetioa of the sample ia that faeiliey 
may £0Et1:1ire the efBJ!loyee or Qflfllieant to FefBOve their elothi-Bg. 
(3) Ne An employee or applicant may not be required to provide a urine sample 
while being observed, directly or indirectly, by another individual. 
(4) The employer may take additional actions necessary to ensure the integrity of 
a urine sample if the sample collector or testing laboratory determines that the 
sample may have been substituted, adulterated, diluted or otherwise tampered 
with in an attempt to influence test results. 
The Department of Health and 
Human Services shall adopt rules governing when those additional actions are 
justified and the scope of those actions. These rules may not permit the direct or 
indirect observation of the collection of a urine sample. If an employee or 
applicant is found to have twice substituted, adulterated, diluted or otherwise 
tampered with the employee's or applicant's urine sample, as determined under 
the rules adopted by the department, the employee or applicant is deemed to have 
refused to submit to a substance a0liSe use test. 
(5) If the employer proposes to use the type of screening test described in section 
682, subsection 7, paragraph A, subparagraph (1), the employer's policy must 
include: 
(a) Procedures to ensure the confidentiality of test results as required in 
section 685, subsection 3; and 
(b) Procedures for training persons performing the test in the proper manner 
of collecting samples and reading results, maintaining a proper chain of 
custody and complying with other applicable provisions of this subchapter; 
D. +he Procedures for the storage of samples before testing sufficient to inhibit 
deterioration of the sample; 
E. The chain of custody of samples sufficient to protect the sample from tampering 
and to verify the identity of each sample and test result; 
F. The substances of abuse to be tested for; 
G. The cutoff levels for eoth sereeaiag and confirmation tests at which the presence 
of a substance of abuse in a sample is considered a confirmed positive test result. 
(1) Cutoff levels for confirmation tests for marijuana may not be lower than 15 
nanograms of delta-9-tetrahydrocannabinol-9-carboxylic acid per milliliter for 
urine samples. 
(2) The Department of Health and Human Services shall adopt rules under 
section 687 regulating screening and confirmation cutoff levels for other 
substances of abuse,· including those substances tested for in blood samples under 
subsection 5, paragraph B, to ensure that levels are set within known tolerances 
of test methods and above mere trace amounts. An employer may request that 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENr.:B "to H.P. 937, L.D. 1384 
the Department of Health and Human Services establish a cutoff level for any 
substance of abuse for which the department has not established a cutoff level. 
(3) Notwithstanding subparagraphs (1) and (2), if the Department of Health and 
Human Services does not have established cutoff levels or procedures for any 
specific federally recognized substance ahttSe use test, the minimum cutoff levels 
and procedures that apply are those set forth in the Federal Register, Volume 69, 
No. 71, sections 3.4 to 3.7 on pages 19697 and 19698, in mandated guidelines for 
federal worlq)lace drug testing programs or in the protocols and levels established 
by the United States Department of Health and Human Services. Substance 
Abuse and Mental Health Services Administration; 
H. The consequences of a confirmed positive substance ahttSe use test result; 
I. The consequences for refusal to submit to a substance ahttSe use test; 
J. Opportunities and procedures for rehabilitation following a confirmed positive 
result; 
K. A procedure under which an employee or applicant who receives a confirmed 
positive result may appeal and contest the accuracy of that result. The policy must 
. 
include a mechanism that provides an opportunity to appeal at no cost to the 
appellant; and 
L. Any other matters required by rules adopted by the Department of Labor under 
section 687. 
An employer m1:1st eoBsl:llt with the employer's employees iB the aevelopmeat of aa;' 
portioB of a s1:1estaaee ae1:1se testiag fJOliey aaaer this Sl:leseetioB that relates to the 
emf)loyees. The emf)loyer is Bot req1:1irea to eoBsl:llt vlith the emf)loyees OB those portioBs 
of a fJOliey that relate oaly to af)fJlieaats. The emf)lO~'er shall seBa a eopy of the fiaal 
·.vrittea poliey to the D0f)artmeat of Laeor for revie·,y l:Hl:aer seetioB 080. The emf)lO~'er 
may Bot implemeat the poliey l:lfttil the Def)artmeftt of Laeor llf)f)ro·1es the fJOliey. The 
emf)loyer shall seaa a eopy of~, fJrOfJosea ehaage iB aB af)fJrovea writtea poliey to the 
D0f)artmeBt ofLaeor for review l:Hl:der seetioB 080. The emplo~'er may Bot implemeBt the 
ehange t1Btil the DOf)artmBBt of Laeor apf)fO-Ves the ehaB.ge 
3. Copies to employees and applicants. The employer shall provide each employee 
with notice of, and an opportunity to review, a copy of the vlritteB poliey approved ey the 
D0f)artmeat of Laeor lfflder seetioB 080 uniform impairment and substance use testing 
policy at least 30 days before any portion of the writteB policy applicable to employees 
takes effect. The efRf)loyer saall pro·tiae eaeh employee vtith a eopy of aay ehaage iB a 
1,,vri-tteB pol.4ey a:flf)f0¥0d ey the D0f)artmeat of Laeor l:iilae£ seetioB 08e at least eQ days 
eefore aay f)OrtioB of the ehaage aflfllieaele to effif)loyees takes effeet. The D0f)artmeBt 
7 
of Laeor ~, v;aive the @ day Botiee for the imf)lemeatatioB of aa ameBdmeat eoveriag 
effif)loyees if the ameBdmeBt v;as Beeessary to eomf)ly vtith the law or if, iB the j1:10gmeat 
of the tl0flar-tmeBt, the ameft0ffieBt promotes the fH:liJlOSe of the lav; ana aoes Bot lesseB 
the proteetioB of aa iBaivid1:1aJ employee. If an employer intends to test an applicant, the 
employer shall provide the applicant with an opportunity to review a copy of the writteB 
uniform policy l:l:Bder subseetioB 2 before administering a substance ahttSe use test to the 
COMMITTEE AMENDMENT 
COMMITTEE AMENDME~" to H.P. 937, L.D. 1384 
applicant. The 30-day aas 6Q say notice perio<ls period provided for employees under 
this subsection ae does not apply to applicants. 
4. Consent forms prohibited. An employer may not require, request or suggest that 
any employee or applicant sign or agree to any form or agreement that attempts to: 
A. Absolve the employer from any potential liability arising out of the imposition of 
the substance ahHSe use test; or 
B. Waive an employee's or applicant's rights or eliminate or diminish an employer's 
obligations under this subchapter except as provided in subsection 4-A. 
Any form or agreement prohibited by this subsection is void. 
4-A. Waivers for temporary employment. An employment agency, as defined in 
section 611, may request a written waiver for a temporary placement from an individual 
already in its employ or on a roster of eligibility as long as the client company has aa 
appre,,es adopted the uniform impairment and substance ahttse use testing policy in 
accordance with this subchapter and the individual has not been assigned work at the 
client company in the 30 days previous to the request. The waiver is only to allow a test 
that might not otherwise be allowed under this subchapter. The test must otherwise 
comply with the standards of this subchapter and the empleymeftt ageney's approves 
uniform policy regarding applicant testing. The agency may not take adverse action 
against the individual for refusal to sign a waiver. 
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5. Right to obtain other samples. At the reE!t*est of the employee or applieaat at the 
time the test sample is taken, the employer shall, at that time: 
A. Segregate a portion of the sample for that person's own testing. Within 5 days 
after notice of the test result is given to the employee or applicant, the employee or 
applicant shall notify the employer of the testing laboratory selected by the employee 
or applicant. This laboratory must comply with the requirements of this section 
related to testing laboratories. When the employer receives notice of the employee or 
applicant's selection, the employer shall promptly send the segregated portion of the 
sample to the named testing laboratory, subject to the same chain of custody 
requirements applicable to testing of the employer's portion of the sample. The 
employee or applicant shall pay the costs of these tests. Payment for these tests may 
not be required earlier than when notice of the choice of laboratory is given to the 
employer; and 
B. In the case of an employee, have a blood sample taken from the employee by a 
licensed physician, registered physician's assistant, registered nurse or a person 
certified by the Department of Health and Human Services to draw blood samples. 
The employer shall have this sample tested for the presence of alcohol or marijuana 
metabolites, if those substances are to be tested for under the employer's vtrittea 
uniform impairment and substance use testing policy. If the employee requests that a 
blood sample be taken as provided in this paragraph, the employer may not test any 
other sample from the employee for the presence of these substances. 
(1) The Department of Health and Human Services may identify, by rules 
adopted under section 687, other substances of abuse for which an employee may 
request a blood sample be tested instead of a urine sample if the department 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMEN~ "to H.P. 937, L.D. 1384 
determines that a sufficient correlation exists between the presence of the 
substance in an individual's blood and its effect upon the individual's 
performance. 
(2) We An employer may not require, request or suggest that any employee or 
applicant provide a blood sample for substance abase use testing purposes nor 
may any employer conduct a substance abase use test upon a blood sample 
except as provided in this paragraph. 
(3) Applicants do not have the right to require the employer to test a blood 
sample as provided in this paragraph. 
5-A. Point of collection screening test. Except as provided in this subsection, all 
provisions of this subchapter regulating screening tests apply to noninstrumented point of 
collection test devices described in section 682, subsection 7, paragraph A, subparagraph 
(1). 
A. A noninstrumented point of collection test described in section 682, subsection 7, 
paragraph A, subparagraph (1) may be performed at the point of collection rather 
than in a laboratory. Subsections 6 and 7 and subsection 8, paragraphs A to C do not 
apply to such screening tests. Subsection 5 applies only to a sample that results in a 
positive test result. 
B. Any sample that results in a negative test result must be destroyed. Any sample 
that results in a pesti¥e positive test result must be sent to a qualified testing 
laboratory consistent with subsections 6 to 8 for confirmation testing. 
C. A person who performs a point of collection screening test or a confirmation test 
may release the results of that test only as follows. 
(1) For a point of collection screening test that results in a preliminary positive 
or negative test result, the person performing the test shall release the test result 
to the employee who is the subject of the test immediately. 
(2) For a point of collection screening test that results in a preliminary positive 
test result, the person performing the test may not release the test result to the 
employer until after the result of the confirmation test has been determined. 
(3) For a point of collection screening test that results in a preliminary negative 
test result, the person performing the test may not release the test result to the 
employer until after the result of a confirmation test would have been determined 
if one had been performed. 
(4) For a confirmation test, the person performing the test shall release the result 
immediately to the employee who is the subject of the test and to the employer. 
6. Qualified testing laboratories required. We An employer may not perform any 
substance abase use test administered to any of that employer's employees. An employer 
may perform screening tests administered to applicants if the employer's testing facilities 
comply with the requirements for testing laboratories under this subsection. Except as 
provided in subsection 5-A, any substance abase use test administered under this 
Page IO -127LR0458(03)-1 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMEN::.:B" to H.P. 937, L.D. 1384 
subchapter must be performed in a qualified testing laboratory that complies with this 
subsection. 
B. The laboratory must have written testing procedures and procedures to ensure a 
clear chain of custody. 
C. 
The laboratory must demonstrate satisfactory performance in the proficiency 
testing program of the National Institute on Drug Abuse, the College of American 
Pathology or the American Association for Clinical Chemistry. 
D. The laboratory must comply with rules adopted by the Department of Health and 
Human Services under section 687. These rules shall must ensure that: 
(1) The laboratory possesses all licenses or certifications that the department 
finds necessary or desirable to ensure reliable and accurate test results; 
(2) The laboratory follows proper quality control procedures, including, but not 
limited to: 
(a) The use of internal quality controls during each substance ahHse use test 
conducted under this subchapter, including the use of blind samples and 
samples of known concentrations whieh that are used to check the 
performance and calibration of testing equipment; 
(b) The internal review and certification process for test results, including 
the qualifications of the person who performs that function in the testing 
laboratory; and 
( c) Security measures implemented by the testing laboratory; and 
(3) Other necessary and proper actions are taken to ensure reliable and accurate 
test results. 
7. Testing procedure. A testing laboratory shall perform a screening test on each 
sample submitted by the employer for only those substances of abuse that the employer 
requests to be identified. If a screening test result is negative, no further test may be 
conducted on that sample. If a screening test result is positive, a confirmation test shall 
must be performed on that sample. 
A testing laboratory shall retain all confirmed 
positive samples for one year in a manner that will inhibit deterioration of the samples 
and allow subsequent retesting. All other samples shall must be disposed of immediately 
after testing. 
8. Laboratory report of test results. This subsection governs the reporting of test 
results. 
A. A laboratory report oftest results shall must, at a minimum, state: 
(1) The name of the laboratory that performed the test or tests; 
(2) Any confirmed positive results on any tested sample. 
(a) Unless the employee or applicant consents, test results shall may not be 
reported in numerical or quantitative form but shall must state only that the 
test result was positive or negative. This division does not apply if the test or 
COMMITTEE AMENDMENT 
COMMITIEE AMENDMENT~" to H.P. 937, L.D. 1384 
the test results become the subject of any grievance procedure, administrative 
proceeding or civil action. 
(b) 
A testing laboratory and the employer f:Hl::Hrt shall ensure that an 
employee's unconfirmed positive screening test result cannot be determined 
by the employer in any manner, including, but not limited to, the method of 
billing the employer for the tests performed by the laboratory and the time 
within which results are provided to the employer. This division does not 
apply to test results for applicants; 
(3) The sensitivity or cutoff level of the confirmation test; and 
(4) Any available information concerning the margin of accuracy and precision 
of the test methods employed. 
The report shall may not disclose the presence or absence of evidence of any physical 
or mental condition or of any substance other than the specific substances of abuse 
that the employer requested to be identified. A testing laboratory shall retain records 
of confirmed positive results in a numerical or quantitative form for at least 2 years. 
B. The employer shall promptly notify the employee or applicant tested of the test 
result. 
Upon request of an employee or applicant, the employer shall promptly 
provide a legible copy of the laboratory report to the employee or applicant. Within 3 
working days after notice of a confirmed positive test result, the employee or 
applicant may submit information to the employer explaining or contesting the 
results. 
C. 
The testing laboratory shall send test reports for samples segregated at an 
employee's or applicant's request under subsection 5, paragraph A, to both the 
employer and the employee or applicant tested. 
D. Every employer whose uniform policy notification is approved by the Department 
of Labor under section 686 shall annually send to the department a compilation of the 
results of all substance almse use tests administered by that employer in the previous 
calendar year. This report shall must provide separate categories for employees and 
applicants and shall must be presented in statistical form so that no person who was 
tested by that employer can be identified from the report. The report shall must 
include a separate category for any tests conducted on a random or arbitrary basis 
under section 684, subsection 3. 
E. Any laboratory-confirmed positive substance use test results must be reported to a 
medical review officer. The medical review officer may be directly or indirectly 
retained by the employer, but shall act independently in carrying out any testing 
reviews or recommendations. The medical review officer shall contact the employee 
and, if necessary, the employee's physician to review each confirmed positive 
substance use test or any test found to be adulterated, substituted or otherwise invalid 
to determine whether there is, in the opinion of the medical review officer, a 
legitimate medical explanation for the result. Any exchange between the employee 
and the medical review officer is not subject to doctor-patient relationship 
confidentiality, although the medical review officer shall protect the confidentiality of 
the drug testing information as otherwise provided in this chapter. The medical 
COMMITTEE AMENDMENT 
COMMITIEE AMENDMENT~" to H.P. 937, L.D. 1384 
review officer may not disclose the presence or absence of any physical or mental 
condition of the employee, the presence or absence of any substances other than those 
allowed to be tested for under Department of Health and Human Services laboratory 
testing rules or the presence or absence of any substance for which there is a 
legitimate medical explanation. 
9. Costs. The employer shall pay the costs of all substance aetiSe use tests to which 
the employer requires, requests or suggests that an employee or applicant submit. Except 
as provided in paragraph A, the employee or applicant shall pay the costs of any 
additional substance aetiSe use tests. 
Costs of a substance aetiSe use test administered at the request of an employee under 
subsection 5, paragraph B,shall must be paid: 
A. By the employer if the test results are negative for all substances of abuse tested 
for in the sample; and 
B. By the employee if the test results in a confirmed positive result for any of the 
substances of abuse tested for in the sample. 
10. Limitation on use of tests. An employer may administer substance aetiSe use 
tests to employees or applicants only for the purpose of discovering the use of any 
substance of abuse likely to cause impairment of the user or the use of any scheduled 
drug. Ne An employer may not have substance ae:t:lSe use tests administered to an 
employee or applicant for the purpose of discovering any other information. 
11. Rules. The Department of Health and Human Services shall adopt any rules 
under section 687 regulating substance aetiSe use testing procedures that it finds 
necessary or desirable to ensure accurate and reliable substance aetiSe use testing and to 
protect the privacy rights of employees and applicants. 
Sec. 10. 26 MRSA §684, as amended by PL 2003, c. 547, §2, is further amended 
to read: 
§684. Imposition of tests 
1. Testing of applicants. An employer may require, request or suggest that an 
applicant submit to a substance aetiSe use test only if: 
A. The applicant has been offered employment with the employer; or 
B. The applicant has been offered a position on a roster of eligibility from which 
applicants will be selected for employment. The number of persons on this roster of 
eligibility may not exceed the number of applicants hired by that employer in the 
preceding 6 months. 
The offer of employment or offer of a position on a roster of eligibility may be 
conditioned on the applicant receiving a negative test result. 
2. PFelullde eeuse testieg ef e111.11leyees. AB employer may re(fliire, re(l1:test or 
s1:tggest that aB employee s1:temit to a S1:tBsta:Bee ae1:tse test if the @fflf)lo:yer has proaaele 
eani.e te tei.t 1'Ae emAle>;ee. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT_:B" to H.P. 937, L.D. 1384 
A. The emfJleyee's iHlHl:eaiate 5af)erviser, ether Sl:lflervisery fleFSeenel, a lieeasea 
flhysieiaa er Bl:lfse_ er the emfJleyer's se6l:lfity fJerseBBel shall m.ak:e the aetenniaatiea 
effJreaaale ea1:1se_ 
R The Sl:lflerviser er ether fleFSeB mast state, ia writiag, the faets l:lfleB whieh this 
aet0l"lBi£atiea is eases aaa fJreviae a eefly ef the statem.eat te the emfJleyee. 
2-A. Impairment detection required; testing of employees. An employer may 
require. request or suggest that an employee submit to a substance use test. an impairment 
determination by an occupational health care provider, or both, only if the employer has 
made an impairment detection regarding the employee pursuant to this subsection. 
A. 
Only supervisory. human resources or security personnel approved for 
impairment detection by the Department of Labor or a licensed physician or nurse 
may make an impairment detection regarding an individual employee. 
B. The person making the impairment detection shall state in writing, on a form 
provided by the department, the facts Ul)On which the detection is based, and provide 
a copy of the completed form to the employee as soon as possible but no later than 24 
hours from the time the detection is made. The completed impairment detection form 
must be provided to the employee prior to any substance use testing of that employee. 
C. At least 2 weeks prior to conducting any impairment detection activities under 
this subsection, the employer must provide the department with a list of all positions 
subject to impairment detection activities and notify employees by posting that list in 
a location accessible to all employees. The employer may amend the list as long as, 
at least 2 weeks prior to any impairment detection activities, employees whose 
positions are being added to the list are notified of their inclusion on the list, the 
amended list is posted in a location accessible to employees and the amended list is 
submitted to the department. 
D. Subject to any limitation of the Maine Human Rights Act or any other state or 
federal law, there may be no cause of action against an employer for making and 
acting upon impairment detection in accordance with this subsection as long as the 
completed impairment detection form is provided to the employee and the 
impairment detection is based on the employer's good faith belief that the employee 
was impaired at work. 
E. An impairment detection may not be based exclusively on: 
(1) Information received from an anonymous informant; or 
(2) Any information tending to indicate that an employee may have possessed or 
used a substance of abuse off duty, excm,t 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. 
2-B. Impairment determination; temporary removal. If an impairment detection 
is made, the employer may immediately remove the employee, or temporary employee, 
from the workplace pending resolution of the impairment detection. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDME~" to H.P. 937, L.D. 1384 
A. Any impairment detection must be confirmed through a medical review by an 
occupational health care provider prior to any further action by the employer based 
on the impairment determination. The occupational health care provider may require 
that the employee submit to testing for substances of abuse, including prescription 
medications, to assist in investigating and confirming the impairment detection. The 
occupational health care provider may perform a fitness-for-duty evaluation of the 
employee. The occupational health care provider may direct the employee to obtain 
further medical evaluation either by the employee's physician or by another licensed 
physician acceptable to the occupational health care provider. 
. B. Any substance use testing subsequent to an impairment detection confirmation 
must be done by an independent testing facility and all screening and confirmatory 
test results must be delivered to the medical review officer for review according to 
section 683, subsection 8, paragraph E. The medical review officer shall provide the 
results to the occupational health care provider and may not provide the results to the 
employer. When an employer is using a substance use test only, the medical review 
officer shall provide the results to the employer. Prescription medications may be 
tested for only when impairment detection has been made, and only for the purpose 
of assisting the occupational health care provider in evaluating whether an employee 
is impaired and the cause of the impairment. 
C. 
The occupational health care provider shall make the final determination of 
whether an employee was or is impaired, identify the cause of any impairment, 
determine whether the employee can continue to perform any safety-sensitive tasks 
and determine the impairment remediation program, if any, necessary to ensure that 
the impairment will not recur or will not adversely affect the safety of the employee, 
coworkers and other persons at the work site in the future. The occupational health 
care provider may also make further recommendations regarding the employee's 
ability to safely perform all assigned tasks, including requiring any remedial 
measures, including, but not limited to, compliance with return-to-work agreements 
or a written agreement by the employee to schedule any necessary medications in a 
manner that will not lead to impairment on the job. A return-to-work agreement may 
be used if an employee has violated the drug-free workplace policy and has been 
provided the opportunity to participate in treatment as a condition of continued 
employment or reemployment. 
D. If the occupational health care provider finds that the employee was not impaired 
on the job or that any such impairment did not pose a safety risk and did not violate 
the employer's established drug-free workplace policy, the employer shall reinstate 
the employee to the employee's position. 
E. If an impairment detection is made at a time when an occupational health care 
provider is not normally available for work, the employer may take any steps to 
remove the employee, and, prior to the employee's next scheduled work day, the 
employer may determine whether to allow the employee to return to work or to 
request an impairment determination or fitness-for-duty evaluation by the 
occupational health care provider. 
F. An occupational health care provider who makes or acts upon an impairment 
determination in accordance with this section is not subject to a cause of action as 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT~" to H.P. 937, L.D. 1384 
long as the determination is based on the occupational health care provider's good 
faith, professional judgment. An occupational health care provider may not be an 
employee or agent of, or have any :financial interest in, a testing laboratory for which 
the occupational health care provider is reviewing drug test results. An occupational 
health care provider may not derive any financial benefit by having an employer use 
a laboratory that may be construed as a potential conflict of interest. 
3. Random or arbitrary testing of employees. lH: adaitiea te testiag emple::,rees ea 
a pr00aele eatise aasis 1:lfl:aer saaseetiea 2, aa An employer may require, relll:lest 0F 
saggest that an employee submit to a substance almse use test on a random or arbitrary 
basis if: 
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; 
B. 
The employee works in a position the nature of which weals ereate an 
ameaseH:aele could pose a threat to the health or safety of the public or the 
employee's coworkers if the employee were ooaeF the inflaeaee ef impaired by a 
substance of abuse. It is the intent of the Legislature that the requirements of this 
paragraph be narrowly construed; or 
C. The employer has established a random or arbitrary testing program under this 
paragraph that applies to all employees, except as provided in subparagraph (4), 
regardless of position. 
(1) An employer may establish a testing program under this paragraph only if the 
employer has W 10 or more employees who are not covered by a collective 
bargaining agreement. 
(2) The writtea peliey reEJ:uired ey seetiea 1383, saeseetiea 2 1tvith r0SJ3eet te a 
testing pregram 1:lfl:aer this paragraph mast ae ae1.,cel0p00 a~· a eemmittee ef at 
least lQ ef the empleyer's empleyees. The empleyeF shall appeifl:t meffl:9ers te 
the eeHHH:i.ttee frem a eress seetiea ef effiflleyees 1.vhe are eligiele te ee testea. 
The eefflffH:ttee mast iaelaae a meaieal prefessieaal 1tv:h0 is traifl:00 ia preeeaares 
fer testmg fer saestaaees ef aease. If ft0 saeh fleFS0ft is em}"l~ea ~ the 
emple~'er, the empleyer shall eetaia the serviees ef saeh a persea te serve as a 
memeer ef the eeffiftlittee ereatea l:lftaer this sueflaragraph 
(2-A) An employer may establish a random or arbitrary testing program under 
this paragraph if the employer is required to test employees to retain a contract. 
An employee may be allowed to sign a waiver exempting the employee from 
testing when required for a contract and the employee acknowledges that the 
employee may not have an opportunity to work under the contract for which 
testing is required. 
(3) The writtea peliey aevel0f)ea aBaer saeparagraph (2) mast alse reEJ:aire that 
seleetieH ef efflflleYees fer testifH! he He#eTfTlea hv a f!erseH er eHtitv HAt snl=iil'lAt 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT_J?" to H.P. 937, L.D. 1384 
te the eHif!le~'er's iBfit:teBee, stteh as a ffteaieal reYie•N effieer. Seleetiea ffilist he 
ffi:0:0e frem a list, l"rev4aea hy the eHif!leyer, ef all effiflleyees stthj eet te testiBg 
ttBaer this f1aragr0:flh. The list may Bet eefttain. iBfermatiea that wettla iaefttify the 
effiflleyee te the f!erseB er efttity HiakiBg the seleetieB. 
(4) Employees who are covered by a collective bargaining agreement are not 
included in testing programs pursuant to this paragraph unless they agree to be 
included pursuant to a collective bargaining agreement as described under 
paragraph A. 
(5) Befere iflitie:tiBg a testiag f!regre:m ttaeer this f10:fagf0:l"B, the eHif!leyer ffilist 
O 
ehtaia frem the Def!artffieftt ef Laher aflf1£0'1e:l ef the f!eliey aevelef!ee hy the 
eHif1leyee eemmittee, as reqtiiree is seeties 686. If the eHif!leyer aees Bet 
apf!reve ef the vmttes peliey ae•;elef!ee by the emf!leyee eemm-ittee, the 
eHif!leyer may aeeiae set te sttbmit the f!eliey te the eef!artHieftt 0:Be aet te 
estaelislt the testing f!regra.ra. The eHif!leyer :may net ehaage the •.vritten f!eliey 
withettt afll"re•,e:l efthe eHiflleyee eeffiffiittee. 
(6) The eHif!leyer may Bet aisehe:rge, SttSJ!eRe, aemete, aiseif!lille er etherwise 
7 
aiserimiae:te with regara te eeHipeBsatioo er werkiag eeBaitieas agaiast an 
eHipleyee fer f!artieipe:ting er refusing te f!artieipe:te ia 0:B eHipleyee eeHHBittee 
eree:tea pHrsttaftt te this f!aragraflh. 
(7) An arbitrary test may be conducted only on an employee whose job is of a 
nature that could pose a threat to the health or safety of the public or coworkers if 
the employee were under the influence of a substance of abuse. 
4. Testing while undergoing treatment. While the employee is participating in a 
substance abuse rehaeil:itatiea treatment 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 aettSe use testing may be conducted by the rehahilite:tiea er treatment provider 
as required, requested or suggested by that provider. 
A. Substance aettSe use testing conducted as part of such a rehaeilitatien er treatment 
program is not subject to the provisions of this subchapter regulating substance aettSe 
use testing. 
B. An employer may not require, request or suggest that any substance ahttse use test 
be administered to any employee while the employee is undergoing such 
reltaeilitatiea er treatment, except as provided in subsections i 2-A and 3. 
C. The results of any substance ahttse use test administered to an employee as part of 
such a reltaeilitatiea er treatment program may not be released to the employer. 
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 rehaeilitatieB treatment program under section 685, subsection 2, the 
employer may require, reqtiest er sttggest that the employee submit to a subsequent 
substance aettSe use 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 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENTB" to H.P. 937, L.D. 1384 
tests conducted under subsections ;?, 2-A and 3. An employer may require, request or 
suggest that an employee submit to a substance ahtise use test during the first 90 days 
after the date of the employee's prior test only as provided in subsections;?, 2-A and 3. 
Sec. 11. 26 MRSA §685, as amended by PL 2003, c. 547, §3, is further amended 
to read: 
§685. Action taken on substance use tests 
Action taken by an employer on the basis of a substance ahtise use test is limited as 
provided in this section. 
1. Before receipt of test results. An employer may suspend an employee with full 
O 
pay and benefits or may transfer the employee to another position with no reduction in 
pay or benefits while awaiting an employee's test results. 
2. Use of confirmation test results. This subsection governs an employer's use of 
confirmed positive results and an employee's or applicant's refusal to submit to a test 
requested or required by an employer in compliance with this subchapter. 
A. Subject to any limitation of the Maine Human Rights Act or any other state law or 
federal law, and to provisions in this subsection, an employer may use a confirmed 
positive test result 0f for a substance of abuse, refusal to submit to a substance use 
test, a violation of an established drug-free workplace policy or an impairment 
confirmed by an occupational health care provider pursuant to section 684, 
subsection 2-B a~ 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. 
A-1. An employer who tests a person as an applicant and employs that person prior 
to receiving the test result may take no action on a confirmed positive result except in 
accordance with the employee provisions of the 0fflf)loyer's af)f)fevea uniform 
impairment and substance use testing policy. 
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 ~ me:eths 12 weeks in a 
rehaeilitatiea treatment 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. 
A confirmed impairment under section 684, 
subsection 2-B caused by a substance of abuse is the same as an initial confirmed 
7 
positive result for purposes of this paragraph, with or without a substance use test 
result. A treatment program under this paragraph may be provided by an occupational 
health care provider. Participation by an employee in a treatment program must 
begin within 30 days of the employee's receiving notice of the positive test result or 
confirmed impairment, unless otherwise agreed to by the employer. The employer 
COMMITTEE AMENDMENT 
:;. 
COMMITTEE AMENDMENT..:B" to H.P. 937, L.D. 1384 
may take any action described in paragraph A if the employee receives a subsequent 
confirmed positive result from a substance use test administered by the employer 
under this subchapter or the employee receives a subsequent confirmed impairment 
caused by a substance of abuse with or without a substance use test. 
C. If the employee chooses not to participate in a rehahilitati:ea treatment program 
under this subsection, the employer may take any action described in paragraph A. If 
the employee chooses to participate in a rehahilitati:eB: treatment program, the 
following provisions apply. 
(1) If the employer has an employee assistance program that offers counseling or 
rehaeilitatiea treatment 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 rehaeilitatioa treatment 
program. 
(a) Except to the extent that costs are covered by a group health insurance 
plan, the costs of the public or private rehaeilitatioB: treatment program.,,jf 
required by the employer, must be equally divided between the employer and 
employee if the employer has more than~ 50 full-time employees. 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 aeeessary, the The employer shall may 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~ 50 or fewer full-time employees, a municipality or 
other political subdivision of the State is not required to pay for any costs of 
rehaeilitatiea er treatment under any public or private rehahilitatioa treatment 
program. An employer is not required to pay for the costs of rehahilitatieR 
treatment 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 not take any action described in paragraph A while an 
employee is participating in a rehaeilitatiea treatment program, except as 
provided in subparagraph (2-A) and except that an employer may change the 
employee's work assignment or suspend the employee from active duty to reduce 
any possible safety hazard. 
Except as provided in subparagraph (2-A), an 
employee's pay or benefits may not be reduced while an employee is participating 
in a rehahilitatiea treatment program, 13roYia00 except that the employer is not 
required to pay the employee for periods in which the employee is unavailable 
for work for the purposes of rehahili-tatioa treatment or while the employee is 
medically disqualified. The employee may apply normal sick leave and vacation 
time, if any, for these periods. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT.B "to H.P. 937, L.D. 1384 
(2-A) A rehaeilitatiea er treatment provider shall promptly notify the employer 
if the employee fails to comply with the prescribed rehaeilitatiea treatment 
program before the expiration of the a meath 12-week 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 
rehaeilitatiea treatment program, as determined by the rehaeilitatiea er 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 mast 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 rehaei:litatiea er 
treatment provider determines that the employee has not successfully completed 
the rehaeilitatiea treatment program within 6 months after starting the program, 
the employer may take any action described in paragraph A. 
(a) If the employee who has completed rehaeilitatiea treatment previously 
worked in an employment position subject to random or arbitrary testing 
under an employer's written policy, the employer may refuse to allow the 
employee to return to the previous job if the employer believes that the 
employee may 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. No reduction may be made in the employee's previous benefits or 
rate of pay while awaiting reassignment to work or while working in a 
position other than the previous job. The employee shall 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 within 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 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 rehaeilitatiea treatment 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 rehaeilitatiea treatment on that date. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENr:B" to H.P. 937, L.D. 1384 
D. This subsection does not require an employer to take any disciplinary action 
against an employee who refuses to submit to a test, receives a single or repeated 
confirmed positive result or does not choose to participate in a rehabilitation 
treatment program. This subsection is intended to set minimum opportunities for an 
employee with a substance abuse problem to address the problem through 
rehabilitation treatment. 
An employer may offer additional opportunities, not 
otherwise in violation of this subchapter, for rehabilitation treatment or continued 
employment without rehabilitation treatment. 
3. Confidentiality. This subsection governs the use of information acquired by an 
employer in the testing process. 
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. 
B. 
Notwithstanding any other law, the results of any substance abtise use test 
required, requested or suggested by any employer may not be used in any criminal 
proceeding. 
Sec. 12. 26 MRSA §686, as amended by PL 2009, c. 133, §3, is further amended 
to read: 
§686. Review of uniform impairment and substance use testing policy notifications 
1. Review required. The Department of Labor shall review each written f)Oliey or 
ehange to an approYed notification of adoption of the uniform impairment and substance 
use testing policy submitted to the department by an employer under section 683, 
subsection 2. 
A. 
The department shall determine if the employer's written poliey or ehtlftge 
eomplies vfith this stibehapter and shall immediately notify the emf)loyer vlho 
stibfflitted the f)Oliey er ehaH:ge of that determination notification of adoption of the 
uniform impairment and substance use testing policy is complete. If the department 
finds that the f)eliey er eha:age does net eemf)ly with this stibehaf)ter employer's 
notification is incomplete, the department shall alse notify the employer of the 
specific areas in whieh the f)Oliey or ehange is defeethre defects. If the employer's 
notification is determined to be complete. the department shall approve the 
conducting of substance use testing by the employer in accordance with this 
subchapter and shall notify the employer. 
B. The def)artmeH:t may reEJ_ltest additional infermation from Elft emf)leyer when 
neeessart to deterffliae v.4lether aa emal01tmeH:t aosition meets the reau4remeH:ts of 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT :B "to H.P. 937, L.D. 1384 
seetieB 684, s1:WseetieB 3. The defJartffieBt shall Bet apflreve any writteB fleliey that 
fJre•lides fer ranaem er araitrary testiag ef asy emflleYftieBt f!esitiea that the 
empleyer has failed te d6Hi0Bstrate meets the retf(iiremeats efseetioa 684, s1:10seetieB 
3--: 
C. The department shall allow for the use of any federally recognized substance 
aaHSe use test. 
2. Review procedure. The Department of Labor shall adopt rules under section 687 
governing the procedure for reviews conducted under this section. 
A. The rules must provide for notice to be given to the employees of any employer 
who submits a writteB notification of adoption of the uniform impairment and 
substance use testing policy or an amendment applicable to employees to the 
department for review under this section. 
The employees may submit written 
comments to the department challenging an.y flertieB ef the employer's writtea fleliey 
iaellidiag the proposed designation of any position under section 684, subsection 3, 
paragraph B. 
B. Nothing in this section requires a formal hearing to be held concerning the 
submission and review of an employer's writteB notification of adoption of the 
uniform impairment and substance use testing policy. 
C. Notwithstanding Title 5, section 8003, the Maine Administrative Procedure Act, 
Title 5, chapter 375, does not apply to reviews conducted under this section except 
that all determinations by the Department of Labor under this section may be 
appealed as provided in Title 5, chapter 375, subchapter ¥H 1. 
D. The rules may estahlish medel apfJlieaBt pelieies asd emple,yee proaaale ea1:1se 
pelieies asd provide for expedited approval and registration for employers adopting 
s1:1eh medel pelieies the uniform impairment and substance use testing policy. The 
rules adopted under this paragraph are routine technical rules pursuant to Title 5, 
chapter 375, subchapter H--A 2-A. 
Sec. 13. 26 MRSA §689, sub-§3, as enacted by PL 1989, c. 536, §§1 and 2 and 
affected by c. 604, §§2 and 3, is amended to read: 
3. 
Harassment. 
In addition to the liability imposed under subsection 1, any 
employer who requires or repeatedly attempts to require an employee or applicant to 
submit to a substance aaHSe use test under conditions that would not justify the test under 
this subchapter or who without substantial justification repeatedly requires an employee 
to submit to a substance aaHSe use test under section 684, subsection 3: 
A. 
Is subject to a civil penalty not to exceed $1,000, payable to the affected 
employee, to be recovered in a civil action; and 
B. For any subsequent offense against the same employee, is subject to a civil 
penalty of $2,000, payable to the affected employee, to be recovered in a civil action. 
Sec. 14. 26 MRSA §689, sub-§5 is enacted to read: 
5. Civil violation. In addition to the other remedies provided in this section, an 
employer who does not comply with this subchapter commits a civil violation for which 
the following fines may be adjudged. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT ·.B" to H.P. 937, L.D. 1384 
A. For the first violation, not more than $500; 
B. For the 2nd violation, not more than $750; and 
C. For a 3rd violation, and each subsequent violation. not more than $1,000. 
Sec. 15. 26 MRSA §690, as enacted by PL 1989, c. 536, §§1 and 2 and affected 
by c. 604, §§2 and 3, is amended to read: 
§690. Report 
The Department of Labor shall report to the joint standing committee of the 
Legislature having jurisdiction over labor matters on March 1, 1990, and annually on that 
date thereafter. This report shall must: 
1. List of employers. List those employers whose substance abtiSe use testing 
policies have been approved by the Department of Labor under section 686; 
2. Persons tested. Indicate whether those employers listed under subsection 1 are 
testing applicants or employees, or both; 
3. Random or arbitrary testing. Indicate those employers whose substance abtiSe 
use testing policies permit random or arbitrary testing under section 684, subsection 3, 
and describe the employment positions subject to such random or arbitrary testing; 
4. Results. Provide statistical data relating to the reports received from employers 
indicating the number of substance abtiSe use tests administered by those employers in 
the previous calendar year and the results of those tests; and 
5. 
Description. Briefly describe the general scope and practice of workplace 
substance abtiSe use testing in the State. 
Sec. 16. Maine Revised Statutes headnote amended; revision clause. In 
the Maine Revised Statutes, Title 26, chapter 7, subchapter 3-A, in the subchapter 
headnote, the words "substance abuse testing" are amended to read "substance use 
testing" and the Revisor of Statutes shall implement this revision when updating, 
publishing or republishing the statutes.' 
SUMMARY 
This amendment, which is the minority report of the committee, replaces the bill and 
makes changes to the laws governing employment practices concerning substance abuse 
testing, including the following. 
1. It replaces the phrase "substance abuse test" and "substance abuse testing" with 
"substance use test" and "substance use testing" to reflect more modern terminology. 
2. It repeals a section of law that addresses nuclear power plants since there are no 
operating nuclear power plants in this State. 
3. It authorizes an employer that has employees subject to a federally mandated 
substance use testing program to extend federal drug testing activities to its entire 
workforce in order to maintain a single testing program and specifies that the employer 
must prepare a substance use testing plan for employees who are not federally regulated, 
provide a copy of the plan to the employees and the Department of Labor before testing, 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT :B" to H.P. 937, L.D. 1384 
follow federal notification and procedural protocols for such employees and annually 
report the results of testing to the department. 
4. It streamlines the current drug testing policy approval by requiring the Department 
of Labor to develop a uniform impairment and substance use testing policy applicable to 
all employers. Employers must notify, and be approved by, the Department of Labor 
prior to conducting substance use testing. 
5. It removes the "probable cause" standard and replaces it with an "impairment 
detection" standard required before the employer may conduct substance use testing. For 
employers authorized to conduct substance use testing, only an employer or employee 
approved for impairment detection by the Department of Labor or a medical person may 
make an impairment detection. Among other things, this detection may be based on a 
single work-related accident, unlike the "probable cause" standard under current law. The 
employer may immediately remove the employee from the workplace pending resolution 
of the impairment detection. 
6. It adds an "impairment determination" process that may be used as an alternative 
or in addition to a substance use test. Under this process, an occupational health care 
provider conducts a medical review in order to confirm the impairment detection, which 
may include a substance use test that includes testing for prescription drugs. If the 
impairment is confirmed, the employer may take employment action including firing or 
disciplining the employee, subject to any limitations under the Maine Human Rights Act 
and any other state or federal law. If the occupational health care provider finds that the 
employee was not impaired or that such impairment did not pose a safety risk, the 
employee is entitled to full reinstatement of the employee's position. 
7. It adds a violation of an established drug-free workplace policy as grounds for 
employment action; 
8. It adds a first impairment determination to the requirement, applicable to an initial 
confirmed positive substance use test, that the employer must provide the employee with 
an opportunity to participate in a treatment program before discharging or disciplining the 
employee. The time frame for completing the treatment program is reduced from 6 
months to 12 weeks, and an employer with between 20 and 50 full-time employees is no 
longer required to pay half of the costs of the treatment program. An employer with more 
than 50 full-time employees must pay half of treatment costs not covered by a group 
health insurance plan when the treatment program is required of the employee. 
9. It modifies the current requirement that, prior to establishing a substance use 
testing program, an employer with over 20 full-time employees have a functioning 
employee assistance program, instead requiring the program of employers with over 50 
full-time employees. 
10. It expands the number of establishments that may undertake company-wide 
random substance abuse testing by authorizing such testing companies with 10 or more 
employees instead of with 50 employees, as is the current standard. 
11. It provides that all confirmed positive substance use tests may be reported to the 
employee only by a medical review officer and allows an employee to provide a 
legitimate medical explanation for a positive test result for legally obtained medications, 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT~" to H.P. 937, L.D. 1384 
preventing the medical review officer from reporting a positive test for that substance to 
the employer. 
12. It allows testing laboratories to use federal testing standards to encourage testing 
of biological samples beyond urine and blood. 
13. It adds a new civil violation for any employer noncompliance with the substance 
use testing laws, for which a fine of not more than $500 for the first violation, $750 for 
the 2nd violation and $1,000 for 3rd and subsequent violations may be adjudged. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03/21/16 feae 
LD 1384 
LR458(03) 
An Act To Improve Workplace Safety by Simplifying and Improving Employers' Substance Abuse 
Policy Requirements 
~ \ 
Fiscal Note for Bill as Amended by Committee Amendment £ ( f-l ..-i_p ;;i_~ 
Committee: Labor, Commerce, Research and Economic Development 
Fiscal Note Required: Yes 
Fiscal Note 
Potential current biennium cost increase - General Fund 
Minor revenue increase - General Fund 
Correctional and Judicial Impact Statements 
Increases the number of civil violations. 
Increases the number of civil suits. 
The collection of additional fines and filing fees may also increase General Fund revenue by minor amounts. 
Fiscal Detail and Notes 
The Maine Human Rights Commission may require additional General Fund appropriations to respond to the 
anticipated increase in the number of complaints filed. The amount needed will depend on the number of new case 
filings and the complexity of each case. 
Additional costs to the Department of Labor to implement the requirements of this legislation can be absorbed within 
existing budgeted resources. 
LR0458(03) - Fiscal Note - Page 1 of 1