An Act To Address Drug Testing in the Workplace and the Effect of Approved Substances on Current Drug Policy
Maine Legislature, Session 127, LD 1011
Committee: Labor, Commerce, Research and Economic Development
Sponsors: CUSHING, WARD, BRAKEY, BURNS, COLLINS, EDGECOMB, MASON, ROSEN, THIBODEAU, BICKFORD
Amends: 26 MRSA §682, 26 MRSA §683, 26 MRSA §684, 26 MRSA §685, 26 MRSA §686, 26 MRSA §690

Legislative Document 
No. 1011 
S.P. 351 
In Senate, March 19, 2015 
An Act To Address Drug Testing in the Workplace and the Effect of 
Approved Substances on Current Drug Policy 
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed. 
HEATHER J.R. PRIEST 
Secretary of the Senate 
Presented by Senator CUSHING of Penobscot. 
Cosponsored by Representative WARD of Dedham and 
Senators: BRAKEY of Androscoggin, BURNS of Washington, COLLINS of York, 
EDGECOMB of Aroostook, MASON of Androscoggin, ROSEN of Hancock, President 
THIBODEAU of Waldo, Representative: BICKFORD of Auburn. 
Be it enacted by the People of the State of Maine as follows: 
PART A 
Sec. A-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. A-2.  26 MRSA §683, first ¶, as enacted by PL 1989, c. 536, §§1 and 2 and 
affected by c. 604, §§2 and 3, is amended to read: 
No employer may require, request or suggest that any employee or applicant submit 
to a substance abuse test except in compliance with this section.  All actions taken under 
a substance abuse testing program shall must comply with this subchapter, rules adopted 
under this subchapter and the employer's written policy approved under section 686 
model policy adopted pursuant to subsection 2. 
Sec. A-3.  26 MRSA §683, sub-§1, as amended by PL 2011, c. 657, Pt. AA, §72, 
is repealed. 
Sec. A-4.  26 MRSA §683, sub-§2, as amended by PL 2009, c. 133, §2, is further 
amended to read: 
2.  Statewide drug-free workplace model policy.  The Commissioner of Labor shall 
establish a single, comprehensive statewide drug-free workplace model policy to be 
managed by the Department of Labor.  The model policy must be in compliance with all 
pertinent rules and regulations for employers conducting substance abuse testing.  The 
model policy must be posted on the bureau's publicly accessible website.  Before 
establishing any substance abuse testing program, an employer must develop or, as 
required in section 684, subsection 3, paragraph C, must appoint an employee committee 
to develop a written policy in compliance with this subchapter providing adopt the model 
policy, except that an employer may retain its workplace policy approved under former 
section 686 until June 30, 2016 if the workplace policy was approved prior to the 
establishment of the model policy and is as stringent as or more stringent than the model 
policy.  Effective July 1, 2016, all employers shall adopt the model policy.  The 
department shall treat all employers that adopt the model policy as having the same 
substance abuse testing policy.  The model policy must provide for, 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 abuse testing may occur.  The written model policy must 
describe: 
(1)  Which positions, if any, will be are subject to testing, including any positions 
subject to random or arbitrary testing under section 684, subsection 3.  For 
applicant testing and probable cause testing of employees, an employer may 
designate that all positions are subject to testing; and 
(2)  The procedure to be followed in selecting employees to be tested on a 
random or arbitrary basis under section 684, subsection 3; 
C.  The collection of samples. 
(1)  The collection of any sample for use in a substance abuse 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; or 
(b)  If it is the standard practice of an off-site medical facility to require the 
removal of clothing when collecting a urine sample for any purpose, the 
physician or nurse supervising the collection of the sample in that facility 
may require the employee or applicant to remove their the employee's or the 
applicant's clothing. 
(3)  No employee or applicant may 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 abuse 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.  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 both screening and confirmation tests at which the presence 
of a substance of abuse in a sample is considered a 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 
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 abuse 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; 
H.  The consequences of a confirmed positive substance abuse test result; 
I.  The consequences for refusal to submit to a substance abuse 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 must consult with the employer's employees in the development of any 
portion of a substance abuse testing policy under this subsection that relates to the 
employees.  The employer is not required to consult with the employees on those portions 
of a policy that relate only to applicants.  The employer shall send a copy of the final 
written policy to the Department of Labor for review under section 686.  The employer 
may not implement the policy until the Department of Labor approves the policy.  The 
employer shall send a copy of any proposed change in an approved written policy to the 
Department of Labor for review under section 686.  The employer may not implement the 
change until the Department of Labor approves the change adoption of the model policy. 
Sec. A-5.  26 MRSA §683, sub-§3, as amended by PL 1995, c. 324, §5, is further 
amended to read: 
3.  Informing employees and applicants.  The employer shall provide each 
employee with a copy of the written policy approved by the Department of Labor under 
section 686 publish on a portion of its website that is accessible to employees the 
employer's workplace substance abuse testing policy adopted pursuant to this section at 
least 30 days before any portion of the written policy applicable to employees takes 
effect.  The employer shall provide each employee with a copy of any change in a written 
policy approved by the Department of Labor under section 686 at least 60 days before 
any portion of the change applicable to employees takes effect.  The Department of Labor 
may waive the 60-day notice for the implementation of an amendment covering 
employees if the amendment was necessary to comply with the law or if, in the judgment 
of the department, the amendment promotes the purpose of the law and does not lessen 
the protection of an individual employee.  If an employer intends to test an applicant, the 
employer shall provide inform the applicant with a copy of the written policy under 
subsection 2 before administering a substance abuse test to the applicant.  The 30-day and 
60-day notice periods provided for employees under this subsection do not apply to 
applicants that the employer's workplace substance abuse testing policy adopted pursuant 
to this section can be located on the bureau's website. 
Sec. A-6.  26 MRSA §683, sub-§5, ¶B, as enacted by PL 1989, c. 536, §§1 and 2 
and affected by c. 604, §§2 and 3 and amended by PL 2003, c. 689, Pt. B, §6, is further 
amended to read: 
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 written 
workplace substance abuse 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 
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)  No An employer may not require, request or suggest that any employee or 
applicant provide a blood sample for substance abuse testing purposes nor may 
any employer conduct a substance abuse 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. 
Sec. A-7.  26 MRSA §683, sub-§8, ¶D, as enacted by PL 1989, c. 536, §§1 and 2 
and affected by c. 604, §§2 and 3, is repealed. 
Sec. A-8.  26 MRSA §684, sub-§3, ¶C, as enacted by PL 2003, c. 547, §2, is 
amended to read: 
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 50 or more employees who are not covered by a collective 
bargaining agreement. 
(2)  The written policy required by section 683, subsection 2 with respect to a 
testing program under this paragraph must be developed by a committee of at 
least 10 of the employer's employees.  The employer shall appoint members to 
the committee from a cross-section of employees who are eligible to be tested.  
The committee must include a medical professional who is trained in procedures 
for testing for substances of abuse.  If no such person is employed by the 
employer, the employer shall obtain the services of such a person to serve as a 
member of the committee created under this subparagraph. 
(3)  The written policy developed under subparagraph (2) employer's workplace 
substance abuse testing policy must also require that selection of employees for 
testing be performed by a person or entity not subject to the employer's influence, 
such as a medical review officer.  Selection must be made from a list, provided 
by the employer, of all employees subject to testing under this paragraph. The list 
may not contain information that would identify the employee to the person or 
entity making the selection. 
(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)  Before initiating a testing program under this paragraph, the employer must 
obtain from the Department of Labor approval of the policy developed by the 
employee committee, as required in section 686.  If the employer does not 
approve of the written policy developed by the employee committee, the 
employer may decide not to submit the policy to the department and not to 
establish the testing program.  The employer may not change the written policy 
without approval of the employee committee. 
(6)  The employer may not discharge, suspend, demote, discipline or otherwise 
discriminate with regard to compensation or working conditions against an 
employee for participating or refusing to participate in an employee committee 
created pursuant to this paragraph. 
Sec. A-9.  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 
consent 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. A-10.  26 MRSA §685, sub-§2, ¶C, as amended by PL 1995, c. 344, §1, 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, the costs of the public or private rehabilitation program must be equally 
divided between the employer and employee if the employer has more than 
full-time employees are the responsibility of the employee.  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 20 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)  No employer may take any action described in paragraph A while an 
employee is participating in a rehabilitation 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 
rehabilitation program, provided 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 rehabilitation or while the employee is medically disqualified.  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 must 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 6 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 
an employment position subject to random or arbitrary testing under an the 
employer's written workplace substance abuse testing policy adopted under 
section 683, subsection 2, 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 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 commence as if the employee had 
successfully completed rehabilitation on that date. 
Sec. A-11.  26 MRSA §685, sub-§3, ¶A, as enacted by PL 1989, c. 536, §§1 and 
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. 
Sec. A-12.  26 MRSA §686, as amended by PL 2009, c. 133, §3, is repealed. 
Sec. A-13.  26 MRSA §690, as enacted by PL 1989, c. 536, §§1 and 2 and affected 
by c. 604, §§2 and 3, is repealed. 
Sec. A-14.  Effective date.  This Part takes effect July 1, 2016. 
PART B 
Sec. B-1.  Marijuana workplace policy.  The Department of Health and Human 
Services and the Department of Labor shall jointly develop a policy to address the impact 
of medical marijuana use in the workplace, including what steps the State recommends 
for an employer to take if an employee tests positive for marijuana use.  By December 2, 
2015, the Department of Labor shall submit its report detailing the marijuana workplace 
policy along with any recommended legislation to the Joint Standing Committee on 
Labor, Commerce, Research and Economic Development.  The Joint Standing 
Committee on Labor, Commerce, Research and Economic Development may submit a 
bill based upon the report to the Second Regular Session of the 127th Legislature. 
SUMMARY 
Current law requires employers that want to provide a drug-free workplace by testing 
applicants or employees for substance abuse to develop and file a policy with the 
Department of Labor.  The Bureau of Labor Standards reviews the policies to ensure 
compliance with state laws and rules.  This bill provides employers with a single, 
consistent model policy.  The model policy, which must be established by the 
Commissioner of Labor and managed by the department, is intended to encourage greater 
participation by employers to reduce substance abuse in the workplace.  The bill requires 
an employer to adopt the model policy before establishing a substance abuse testing 
program.  It removes the requirements that employers provide an employee assistance 
program and pay for half of rehabilitation beyond services provided through health care 
benefits.  Employers may offer an employee assistance program if they choose.  The bill 
amends the definition of "probable cause" to provide that a single work-related accident is 
probable cause to suspect an employee is under the influence of a substance of abuse.  
This bill requires the Department of Labor and Department of Health and Human 
Services to develop a policy to address the impact of medical marijuana use in the 
workplace for submission to the Joint Standing Committee on Labor, Commerce, 
Research and Economic Development by December 2, 2015.