An Act To Reduce Impairment on the Job and Improve Workplace Safety by Amending the Laws Governing Employment Practices Concerning Substance Use Testing
Maine Legislature, Session 128, LD 1768
Committee: Labor, Commerce, Research and Economic Development
Sponsors: VOLK, BRAKEY, LANGLEY, ESPLING, VACHON
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

Legislative Document
No. 1768
S.P. 655
In Senate, January 3, 2018
An Act To Reduce Impairment on the Job and Improve Workplace 
Safety by Amending the Laws Governing Employment Practices 
Concerning Substance Use Testing
Submitted by the Department of Labor pursuant to Joint Rule 203.
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 VOLK of Cumberland.
Cosponsored by Senators: BRAKEY of Androscoggin, LANGLEY of Hancock, 
Representatives: ESPLING of New Gloucester, VACHON of Scarborough.
Be it enacted by the People of the State of Maine as follows:
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 abuse use tests while allowing 
the use of tests when the employer has a compelling reason to administer a test;
B.  Ensure that, when substance abuse 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 Provide an employee with a substance abuse problem receives an 
opportunity for rehabilitation and treatment of the disease and returns and to return to 
work as quickly as possible; and
D.  Eliminate drug use in the workplace.;
E.  Protect workers from injuries and illnesses caused by impairment in the 
workplace; and
F.  Provide the State with reliable data regarding the prevalence of substance use in 
the State's workforce in order to inform employment, workplace safety, rehabilitation 
and substance abuse policy.
2.  Employer discretion.  This subchapter does not require or encourage employers 
to conduct substance abuse use testing of employees or applicants.  An employer who 
chooses to conduct such testing is limited by this subchapter, but may establish policies 
which that are supplemental to and not inconsistent with this subchapter.
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 abuse 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.  No A municipality may not enact any 
ordinance under its home rule authority regulating an employer's use of substance abuse 
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, provided that as long as these examinations are not used to avoid the 
restrictions of this subchapter.  No such An examination may not include the use of any 
substance abuse 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 abuse use test is required, requested or 
suggested by the employer or used as the basis for any disciplinary action.
8.  Nuclear power plants; federal law.  The following limitations apply to the 
application of this subchapter.
A.  This subchapter does not apply to nuclear electrical generating facilities and their 
employees, including independent contractors and employees of independent 
contractors who are working at nuclear electrical generating facilities.
C.  This subchapter does not apply to any employer subject to a federally mandated 
drug and alcohol testing program, including, but not limited to, testing mandated by 
the federal Omnibus Transportation Employee Testing Act of 1991, Public Law 102-
143, Title V, and its employees, including independent contractors and employees of 
independent contractors who are working for or at the facilities of an employer who 
is subject to such a federally mandated drug and alcohol testing 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.
B.  An employer with employees in this State who are subject to a federally mandated 
drug and alcohol testing program either may 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 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 frequency of testing and the selection of those persons 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, such as when a client requires testing 
prior to work on a project or specific site.
Sec. 3.  26 MRSA §682, sub-§2, as amended by PL 1995, c. 324, §3, is further 
amended to read:
2.  Employee.  "Employee" means a person who is permitted, required or directed by 
any employer to engage in any employment for consideration of direct gain or profit.  A 
person separated from employment while receiving a mandated benefit from the 
employer, including but not limited to workers' compensation, unemployment 
compensation and family medical leave, is an employee for the period the person receives 
the benefit and for a minimum of 30 days beyond the termination of the benefit.  A 
person separated from employment while receiving a nonmandated benefit is an 
employee for a minimum of 30 days beyond the separation A person who has been 
temporarily laid off and is filing for unemployment benefits but who has a definite recall 
date within 6 weeks of the date of the initial layoff or who is receiving workers' 
compensation benefits and has not yet been released to return to work by an authorizing 
medical provider is considered to be an employee for the purpose of substance use 
testing.
A.  A full-time employee is an employee who customarily works 30 36 hours or more 
each week.
Sec. 4.  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 State's Department 
of Public Safety that incorporate any federal laws or regulations related to substance 
abuse use testing for motor carriers, from continuing in the employee's former 
employment position due to the result of a substance abuse use test conducted under the 
federal law or regulation or the Department of Public Safety rule.
Sec. 5.  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 that 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 requirements.
3-C.  
Fitness-for-duty evaluation.  
"Fitness-for-duty evaluation" means an 
evaluation to determine whether an employee is in a physical, mental and emotional state 
to perform the essential tasks of that employee's work 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" means any observed abnormality or 
change in an employee's physical, psychological or physiological condition or an event in 
the workplace 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.  "Impaired" means acting under the influence of an 
impairment.
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" includes 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. 6.  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.  "Occupational health care provider" includes 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. 7.  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. 8.  26 MRSA §682, sub-§§6-A to 6-C 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.
Sec. 9.  26 MRSA §682, sub-§7, as amended by PL 2009, c. 133, §1, is further 
amended to read:
7.  Substance use test.  "Substance abuse 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 abuse use test performed through the 
use of immunoassay technology or a federally recognized substance abuse 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 abuse 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 abuse use test or is performed through the use 
of liquid or gas chromatography-mass spectrometry.
C.  "Federally recognized substance abuse use test" means any substance abuse 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. 10.  26 MRSA §683, as amended by PL 2011, c. 657, Pt. AA, §72, is further 
amended to read:
§683.  Testing procedures
No An employer may not require, request or suggest that any employee or applicant 
submit to a substance abuse use test except in compliance with this section.  All actions 
taken under a substance abuse use testing program shall must comply with this 
subchapter, rules adopted under this subchapter and the employer's written uniform 
impairment and substance use testing policy approved under section 686 developed by 
the Department of Labor pursuant to subsection 2.
1.  Employee assistance program optional.  Before establishing any substance 
abuse testing program for employees, an An employer with over 20 full-time employees 
must may have a functioning an employee assistance program.
A.  The An employer may meet this requirement by participating participate 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.  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 for On or before January 1, 
2019, 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, 
2019, an employer shall certify to the department that it has adopted the uniform 
impairment and substance use testing policy as set forth in department rules and 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, 2019 may continue to operate under that 
policy but shall certify to the department by no later than January 1, 2020 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 abuse use testing may occur. The written policy must describe:
(1)  Which positions, if any, will be subject to testing, including any positions 
subject to random or arbitrary testing under section 684, subsection 3.  For 
applicant testing and probable cause 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 For the collection of samples.
(1)  The collection of any sample for use in a substance abuse 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; 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 clothing.
(3)  No 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 abuse 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.  The 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 both screening 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 
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 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 workplace 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 abuse use test result;
I.  The consequences for refusal to submit to a substance abuse use test;
J.  Opportunities and procedures for rehabilitation treatment following a confirmed 
positive substance use test result;
K.  A procedure under which an employee or applicant who receives a confirmed 
positive substance use test 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.
3.  Copies to employees and applicants.  The employer shall provide each employee 
with notice of and an opportunity to review a copy of the written policy approved by the 
Department of Labor under section 686 uniform impairment and substance use testing 
policy adopted pursuant to subsection 2 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 the applicant with an 
opportunity to review a copy of the written uniform policy under subsection 2 before 
administering a substance abuse use test to the applicant.  The 30-day and 60-day notice 
periods period provided for employees under this subsection do does not apply to 
applicants.
4.  Consent forms prohibited.  An employer may not require, request or suggest that 
any an 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 abuse 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 an 
approved adopted the uniform impairment and substance abuse use testing policy in 
accordance with subsection 2 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 employment agency's approved uniform 
policy regarding applicant testing.  The agency may not take adverse action against the 
individual for refusal to sign a waiver.
5.  Right to obtain other samples.  At the request of the employee or applicant 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 written 
uniform impairment and substance use testing policy adopted pursuant to subsection 
2.  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 use testing purposes nor 
may any employer conduct a substance abuse 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 postive 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.  No An employer may not perform any 
substance abuse 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 abuse use test administered under this 
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 abuse use test 
conducted under this subchapter, including the use of blind samples and 
samples of known concentrations which 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 of test 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 
the test results become the subject of any grievance procedure, administrative 
proceeding or civil action.
(b)  A testing laboratory and the employer must 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 impairment and substance use testing policy 
certification is approved by the Department of Labor under section 686 shall annually 
send to the department a compilation of the results of all substance abuse 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 a person who was tested by that employer can cannot 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.  An 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 
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 abuse 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 abuse use tests.
Costs of a substance abuse 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 abuse 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.  No An employer may not have substance abuse 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 abuse use testing procedures that it finds 
necessary or desirable to ensure accurate and reliable substance abuse use testing and to 
protect the privacy rights of employees and applicants.
Sec. 11.  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 abuse 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.  Probable cause testing of employees.  An employer may require, request or 
suggest that an employee submit to a substance abuse test if the employer has probable 
cause to test the employee.
A.  The employee's immediate supervisor, other supervisory personnel, a licensed 
physician or nurse, or the employer's security personnel shall make the determination 
of probable cause.
B.  The supervisor or other person must state, in writing, the facts upon which this 
determination is based and provide a copy of the statement to the employee.
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 of Labor, the facts upon which the detection is based, 
and shall 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 of Labor 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, except when the employee is observed 
possessing or ingesting any substance of abuse while either 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.
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.  The presence of 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 task or 
occupation 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, which may include, without limitation, 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 established 
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.
An occupational health care provider who makes or acts upon an impairment 
determination in accordance with this subsection is not subject to a cause of action as 
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.  In addition to testing employees on 
a probable cause basis under subsection 2, an An employer may require, request or 
suggest that an employee submit to a substance abuse 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 would create an 
unreasonable could pose a threat to the health or safety of the public or the 
employee's coworkers if the employee were under the influence of 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 50 10 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.
(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 written policy developed under subparagraph (2) 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.
(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 impaired by a substance of abuse.
4.  Testing while undergoing treatment.  While the employee is participating in a 
substance abuse rehabilitation treatment program either as a result of voluntary contact 
with or mandatory a referral to the employer's employee assistance program or after a 
confirmed positive test result as provided in section 685, subsection 2, paragraphs B and 
C, substance abuse use testing may be conducted by the rehabilitation or treatment 
provider as required, requested or suggested by that provider.
A.  Substance abuse use testing conducted as part of such a rehabilitation or treatment 
program is not subject to the provisions of this subchapter regulating substance abuse 
use testing.
B.  An employer may not require, request or suggest that any substance abuse use test 
be administered to any an employee while the employee is undergoing such 
rehabilitation or treatment, except as provided in subsections 2 2-A and 3.
C.  The results of any substance abuse use test administered to an employee as part of 
such a rehabilitation or treatment program may not be released to the employer.
5.  Testing upon return to work.  If an employee who has received a confirmed 
positive test result returns to work with the same employer, whether or not the employee 
has participated in a rehabilitation treatment program under section 685, subsection 2, the 
employer may require, request or suggest that the employee submit to a subsequent 
substance abuse use test anytime any time between 90 days and one year after the date of 
the employee's prior test.  A test may be administered under this subsection in addition to 
any tests conducted under subsections 2 2-A and 3.  An employer may require, request or 
suggest that an employee submit to a substance abuse use test during the first 90 days 
after the date of the employee's prior test only as provided in subsections 2 2-A and 3.
Sec. 12.  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 abuse use test is limited as 
provided in this section.
1.  Before receipt of test results.  An employer may suspend an employee with full 
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 test 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 or 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 as a factor in any of the following decisions:
(1)  Refusal to hire an applicant for employment or refusal to place an applicant 
on a roster of eligibility;
(2)  Discharge of an employee;
(3)  Discipline of an employee; or
(4)  Change in the employee's work assignment.
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 test result 
except in accordance with the employee provisions of the employer's approved 
uniform impairment and substance use testing policy adopted pursuant to section 683, 
subsection 2.
B.  Before taking any action described in paragraph A in the case of an employee 
who receives an initial confirmed positive test result, an employer shall may provide 
the employee with an opportunity to participate for up to 6 months 12 weeks in a 
rehabilitation 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 
positive test 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 may take any action described in paragraph A if the employee receives a 
subsequent confirmed positive test 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 rehabilitation treatment program 
under this subsection, the employer may take any action described in paragraph A.  If 
the employee chooses to participate in a rehabilitation treatment program, the 
following provisions apply.
(1)  If the employer has an employee assistance program that offers counseling or 
rehabilitation treatment services, the employee may choose to enter that program 
at the employer's expense with any costs not covered by the employer's portion of 
the employee assistance program to be paid by the employee unless the employer 
chooses to cover such costs.  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 treatment program.
(a)  Except to the extent that costs are covered by a group health insurance 
plan, the costs of the public or private rehabilitation treatment program must 
be equally divided between the employer and employee if the employer has 
more than 20 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 necessary, the paid by the 
employee.  The employer shall may assist in financing the cost share of the 
employee employee's costs 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 treatment 
program.  An employer is not required to pay for the costs of rehabilitation 
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)  No An employer may not take any action described in paragraph A while an 
employee is participating in a rehabilitation 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 rehabilitation treatment 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 treatment or while the employee is 
medically disqualified.  The employee may apply normal sick leave and or 
vacation time leave, if any available, for these periods or available family 
medical leave for which the employee may qualify under state or federal law.
(2-A)  A rehabilitation or treatment provider shall promptly notify the employer 
if the employee fails to comply with the prescribed rehabilitation treatment 
program before the expiration of the 6-month 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 
rehabilitation treatment 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 test 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 treatment program within 6 4 months after starting the program, 
the employer may take any action described in paragraph A.
(a)  If the employee who has completed rehabilitation 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 test 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 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 rehabilitation treatment on that date.
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 test 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.  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 abuse use test 
required, requested or suggested by any employer may not be used in any criminal 
proceeding.
Sec. 13.  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 certification
1.  Review required.  The Department of Labor shall review each written policy or 
change to an approved certification 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 policy or change 
complies with this subchapter and shall immediately notify the employer who 
submitted the policy or change of that determination certification of adoption of the 
uniform impairment and substance use testing policy is complete.  If the department 
finds that the policy or change does not comply with this subchapter employer's 
certification is incomplete, the department shall also notify the employer of the 
specific areas in which the policy or change is defective defects.  If the employer's 
certification 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 of this approval.
B.  The department may request additional information from an employer when 
necessary to determine whether an employment position meets the requirements of 
section 684, subsection 3.  The department shall not approve any written policy that 
provides for random or arbitrary testing of any employment position that the 
employer has failed to demonstrate meets the requirements of section 684, subsection 
3.
C.  The department shall allow for the use of any federally recognized substance 
abuse 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 written certification of adoption of the uniform impairment and 
substance use testing policy under section 683, subsection 2 or an amendment 
applicable to employees to the department for review under this section.  The 
employees may submit written comments to the department challenging any portion 
of the employer's written policy, including 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 written certification of adoption of the 
uniform impairment and substance use testing policy under section 683, subsection 2.
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 VII 7.
D.  The rules may establish model applicant policies and employee probable cause 
policies and provide for expedited approval and registration for employers adopting 
such model policies the uniform impairment and substance use testing policy under 
section 683, subsection 2.  The rules adopted under this paragraph are routine 
technical rules pursuant to Title 5, chapter 375, subchapter II-A 2-A.
Sec. 14.  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 abuse 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 abuse 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. 15.  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:
A.  For the first violation, not more than $500;
B.  For the 2nd violation, not more than $750; and
C.  For the 3rd violation and each subsequent violation, not more than $1,000.
Sec. 16.  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 abuse 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 abuse 
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 abuse 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 abuse use testing in the State.
Sec. 17.  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 bill makes changes to the laws governing employment practices concerning 
substance abuse testing, including the following.
1. It replaces the phrases "substance abuse test" and "substance abuse testing" with 
"substance use test" and "substance use testing" to reflect current usage.
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 narrows the definition of "employee" and provides that a full-time employee is 
an employee who works at least 36 hours a week.
4. 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, 
follow federal notification and procedural protocols for such employees and annually 
report the results of testing to the department.
5. It streamlines the current substance use 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 certify their adoption of the policy and be 
approved by the Department of Labor prior to conducting substance use testing. 
6. 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 licensed physician or 
nurse may make an impairment detection.  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. 
7.  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 to the employee's position.
8. It adds a violation of an established drug-free workplace policy as grounds for 
employment action and provides for a treatment period of 12 weeks at the employee's 
expense.
9. It eliminates the requirement that, prior to establishing a substance use testing 
program, an employer with over 20 full-time employees have a functioning employee 
assistance program and instead authorizes employers to have an employee assistance 
program.
10. It expands the number of establishments that may undertake companywide 
random substance use testing by authorizing such testing for companies with 10 or more 
employees instead of with 50 or more employees, as is the current standard.
11.  It provides that a confirmed positive substance use test 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, 
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.
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 the 3rd and subsequent violations may be adjudged.