An Act to Update
Maine Legislature, Session 132, LD 2110
Committee Amendment CA_A_H950 (House)
Amends: 26 MRSA §682, 26 MRSA §683, 26 MRSA §684, 26 MRSA §686, 26 MRSA §690

COMMITTEE AMENDMENT "/^ " to H.P. 1425, L.D. 2110. "An Act to Update
Employer Substance Use Testing Policy 'Requirements"
Amend the bill in section 5 in the first blocked paragraph in the first line (page 1, line
23 in L.D.) by striking out the following: "A" and inserting the following: 'A With the
approval of the Department of Labor, a'
Amend the bill in section 6 in subsection 8 in paragraph C by striking out all of the last
sentence (page 2, lines 2 to 4 in L.D.) and inserting the following: 'To qualify for the
limitation under this paragraph. the emfiloYer must have atleastone enmlovee located in
the State for whom substance use testing is federally mandated, and the employer, in
conducting any substance use testine of aoolicants or emolovees for whom substance use
testing is not federally mandated, shall follow the samefederal regulations applicable to
the testing of employees for whom substance use testing is federally mandated.'
Amend the bill by striking out all of section 7 and inserting the following:
'See. 7. 26 MRSA §682, sub-§l-A is enacted to read:
1-A. Criteria-based testine. "Criteria-based testing" o^"cntena-based." with respect
to substance use testing. means that the frequency of substance use testing and the selection
of nersons beine tested are based on a set event, such as an emulovment anniversary or
Bromotion. "Criteria-based testine" includes client-reguired Q^site-specific testing based
on criteria unrelated to substance use. such as when a client requires testing nrior to work
on a project or specific site.'
Amend the bill by striking out all of section 9 and inserting the following:
'See. 9. 26 MRSA §682, sub-§3-B is enacted to read:
3-B. Leeitimate medical explanation. "Leaitimate medical explanation" means an
explanation orovided bv an emolovee that iustifies a confirmed oositive result on a test for
a tested-for substance. "Legitimate medical explanation" includes:
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT "A " to H.P. 1425, L.D. 2110
AJJse of a controlled substance with a valid orescriotion. prescribed for a leaitimate
medical ouroose in a quantity auoropriate for the condition and expected duration with
levels consistent with prescribed amounts; or
B. Legal use of caimabis pursuant to the Maine Medical Use of Cannabis Act.'
Amend the bill by striking out all of sections 12 and 13 and inserting the following:
'See. 12. 26 MRSA §682, sub-§5-A is enacted to read:
5-A. Observable behavior. "Observable behavior" means observable physical.
behavioral or osvchological signs that can be seen. heard. smelled or otherwise observed
that provide a reasonable suspicion that an employee is impaired by substance use.
including signs regarding aooearance. behavior, speech or odor that are usually associated
with substance use.
Sec. 13. 26 MRSA §682, sub-§5-B is enacted to read:
5-B. Random testine. "Random testing" or "random" means a neutral selection
method by which all employees have an equal chance of being selected for substance use
testini
Sec. 14. 26 MRSA §682, sub-§6, as amended by PL 2017, c. 407, Pt. A, §106, is
further amended to read:
6. Probnble-eause Reasonable suspicion. "Probabl&-eeHse Reasonable suspicion"
means a reasonable ground for belief in the existence of facts that induce aperson to believe
specific and articulable facts that. taken together with rational inferences from those facts.
reasonably support the belief that an employee may be under the influence of a substance,
provided except that the existence ofp^ebaMe-eayse reasonable suspicion may not be based
exclusively on any of the following:
A. Information received from an anonymous informant;
B. Any information tending to indicate that an employee may have possessed or used
a substance off duty, except when the employee is observed possessing or ingesting
any substance 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 without the employee also exhibitine observable
behavior indicatina impairment at the time of the accident.'
Amend the bill in section 15 in subsection 2 in paragraph B in subparagraph (1) in the
2nd line (page 4, line 2 in L.D.) by striking out the following: "arbitrary" and inserting the
following: 'arbitrary criteria-based'
Amend the bill in section 15 in subsection 2 in paragraph B in. subparagraph (2) in the
last line (page 4, line 6 in L.D.) by striking out the following: "arbitrary" and inserting the
following: 'arbitrary criteria-based'
Amend the bill by striking out all of sections 16 and 17 and inserting the following:
'See. 16. 26 MRSA §683, sub-§5, ^B, as amended by PL 2019, c. 627, Ft, B, §7;
PL 2021, c. 669, §5; and PL 2025, c. 316, §3, is further amended to read:
B. la the case of an employee, have a blood sample taken from the employee by a
licensed physician, licensed physician associate^ or registered nurse or a other person
Page2-132LR2789(02)
COMMITTEE AMENDMENT
ROS
COMMITTEE AMENDMENT "A- " to H.P. 1425, L.D. 2110
•A"'
oortifiod by the Dopartmont of Health and Human Sorvioes trained and qualified to
draw blood samples. The employer shall have this sample tested for the presence of
alcohol or cannabis metabolites, if those substances are to be tested for under the
employer's written 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. The employer shall ensure that the
testing facility and confirmation testing laboratory used by the employer accepts and
has the ability to test blood samples.
(1) The Department of Health and Human Services may identify, by mles adopted
under section 687, other substances for which an employee may request that a
blood sample, instead of a urine sample, be tested inctoud 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) An employer may not require, request or suggest that any employee or
applicant provide a blood sample for substance use testing purposes nor may any
employer conduct a substance 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.'
Amend the bill by striking out all of section 19 and inserting the following:
'See. 19. 26 MRSA §683, sub-§6, as amended by PL 2017,c. 407, Pt. A,§107, is
further amended to read:
6. Qualified testing laboratories required. AB Except as provided in subsection
5-A. an employer may not administer or perform any screening tests or substance use test
administered tests to any of that employer's employeesT—An employer may perform
screening tests administered to applicants if the employer's testing facilities unless the
employer's testing facilities comply with the requirements for testing laboratories under
this subsection, Except as provided in subsection 5 A, any substance use test administered
under this subohapter must be performed in a qualified testmg laboratory that complies
with a qualified testine laboratory under 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 Dmg Abuse, the College of American Pathology
Pathologists or the American Association for Clinical Chemistry Diagnostics and
LabQratorv Medicine or a successor oraanization.
D. The laboratory must comply with rules adopted by the Department of Health and
Human Services under section 687, These rules 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:
COMMITTEE AMENDMENT
ROS
COMMITTEE AMENDMENT " /\ " to H.P. 1425, L.D. 21 10
•A"'
(a) The use of internal quality controls during each substance use test
conducted under this subchapter, including the use of blind samples and
samples of known concentrations fhat 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.'
Amend the bill in section 20 in subsection 7 in the 4th Une (page 8, line 18 in L,D.) by
inserting after the following: "positive" the following: 'a'
Amend the bill in section 20 in subsection 7 in the 4th line (page 8, line 18 in L.D.) by
inserting after the following: "non-neeative" the following: 'test result'
Amend the bill by striking out all of sections 21 to 23 and inserting the followmg:
'See. 21. 26 MRSA §683, sub-§7-A is enacted to read:
7-A_._ Medical review officer. Ajcnedical review officer must have knowledge and
clinical experience of controlled substance use disorders and be knowledeeable in
deviations of substance use testine specimens and causes of invalid testing results. The
medical review officer shall act independently in carrying oytanvtesting reviews Bursuant
to this section.
Sec. 22. 26 MRSA §683, sub-§8, ^[A, as amended by PL 2017,c. 407, Pt. A,§107,
is further amended by amending subparagraph (2) to read:
(2) Any confirmed positive results on any tested sample.
(a) Unless the employee or applicant consents, test results may not be reported
in numerical or quantitative form but must state only that the test result was
poaitivo a confirmed positive result, with or without a legitimate medical
explanation, or negative. This division does not apply if the test or the test
¥esylts—beee»e result becomes the subject of any grievance procedure,
administrative proceeding or civil action.
(b) A testing laboratory and the employer shall ensure that an employee's
unconfinned positive gcreening non-neeative test result on a screening test
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;
Sec. 23. 26 MRSA §683, sub-§8, ^B, as amendedbyPL 1989,c.832,§9, is further
amended to read:
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
Page4-132LR2789(02)
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT " A " to H.P. 1425, L.D. 21 10
days after notice of a confirmed positive test result, the employee or applicant may
submit information to the employer explaining or contesting the results.
See. 24. 26 MRSA §683, sub-§8, ^[B-l is enacted to read:
B -1. An applicant or employee must be given the oDDortunitv to contest a non-nefiative
test result by discussing with the medical review officer or confirmation testine
laboratory representative any leeitimate medical explanation for the non-neeative test
result. If the medical review officer or laboratory representative determines that there
is_alegLtimatemedical explanation for the non-neeative test result, the result must be
reported to the emolover as a coufirmed oositive result with a leaitimate medical
exulanation. If the medical review officer or laboratory representative determines that
there is no legitimate medical explanation for the non-neeative test result, the result
must be reoorted to the emolover as a confirmed positive result.
Sec. 25. 26 MRSA §683, sub-§8, ^[D, as amended by PL 2017, c. 407, Pt. A,§107,
is further amended to read:
D. Every employer whose policy is approved by the Department of Labor under
section 686 shall annually send to the department a compilation of the results of all
substance use tests administered by that employer in the previous calendar year. This
report must provide separate categories for employees and applicants and must be
presented in statistical form so that no person who was tested by that employer can be
identified from the report. The report must include a separate category for any tests
conducted on a random or arbitrary criteria-based basis under section 684, subsection
3.'
Amend the bill by striking out all of section 26 and inserting the following:
'See. 26. 26 MRSA §684, sub-§3, as amended by PL 2017,c. 407, Ft. A,§ 108, is
further amended to read:
3. Random or arbitrary criteria-based testing of employees. In addition to testing
employees on a probable cause reasonable suspicion basis under subsection 2, an employer
may require, request or suggest that an employee submit to a substance use test on a random
or arbitrary criteria-based 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 subchupter
September 30. 1989. that provide for random or arbitrary criteria-based testing of
employees. A random or arbitrary criteria-based 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
threat to the health or safety of the public or the employee's coworkers if the employee
were under the influence of a substance. It is the intent of the Legislature that the
requirements of this paragraph be narrowly constmed; or
C. The employer has established a random or arbitrary criteria-based testing program
under this paragraph that applies to all employees, except as provided in subparagraph
(4), regardless of position.
COMMITTEE AMENDMENT
RO;
COMMITTEE AMENDMENT " A-" to H.P, 1425, L.D. 2110
(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.
4. (2) The written policy roquired by oeotion 683, subaootion 2 with roopeot to a
testing program under this paragraph must bo developed by a committoo of at least
10 of tho employer's employees. The employer shall appoint members to tho
oommitteo from u oroos sootion of omployoos who uro oligiblo to bo tostod. Tho
committee must include a medical profesQional who is tramed in procedures for
testing for substances. —If no such person is employed by the employer, the
employer shall obtam the Gsrvices of such a person to serve as a member of the
oonmiittoo created under this subpumgmph.
C2-A) An employer may establish a testing program under this oaraeraph if the
employer is required to test employees to retain a contract.
(3) The written policy developed under subpamgrapla-(3) required by section 683.
subsection 2 must ateo 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 shall
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 th@ policy to the department and not to ostublish the tosting
program, The employer may not change the written policy without approval of the
employee committee.
(6) The employer may not discharge, suspend, demote, disoipline or otherwioo
discriminate with regard to compensation or working conditions against an
employee for participating or refusing to partioiputc in an employee committee
5 created pursuant to this paragraph,'
Amend the bill in section 34 in subparagraph (3) in division (a) in the 2nd line (page
12, line 43 in L,D.) by striking out the following: "arbitrary" and inserting the following:
'arbitrary criteria-based'
Amend the bill in section 34 in subparagraph (3) in division (a) in the 15th line (page
13, line 12 in L.D.) by striking out the following: "test" and inserting the following: 'test'
Amend the bill by inserting after section 34 the followmg:
'See. 35. 26 MRSA §686, sub-§l, ^[B, as enacted by PL 1989, c. 536, §§1 and 2
and affected by c. 604, §§2 and 3, is amended to read;
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT " A " to H.P. 1425, L.D, 21 10
"A"'
B. The department may request additional information from an employer when
necessary to detemune whether an employment position meets the requirements of
section 684, subsection 3. The department sfeaU may not approve any written policy
that provides for random or arbitrary criteria-based testing of any employment position
that the employer has failed to demonstrate meets the requirements of section 684,
subsection 3.'
Amend the bill in section 35 in paragraph B-l in the first line (page 13, line 27 in L.D.)
by strikmg out the following: "chooses" and inserting the following: 'intends'
Amend the bill in section 35 in paragraph B-l in the 3rd line (page 13, line 29 in L.D.)
by inserting before the following: "effective" the following; 'anticipated'
Amend the bill by inserting after section 36 the following:
'See. 37. 26 MRSA §690, sub-§3, as amended by PL 2017,c. 407, Pt. A,§113, is
further amended to read:
3. Random or arbitrary criteria-based testing. Indicate those employers whose
substance use testing policies permit random or arbitrary criteria-based testing under
section 684, subsection 3, and describe the employment positions subject to such random
or arbitrary criteria-based testing;'
Amend the bill by relettermg or renumbering any nonconsecutive Part letter or section
number to read consecutively.
SUMMARY
This amendment:
1. Clarifies that authorization from the Department of Labor is required for any
substance use testing program;
2. Clarifies that an employer who is subject to federal substance use testing
requirements must test any nonfederally mandated employees in the same manner as its
federally mandated employees;
3. Replaces the term "arbitrary" with "criteria-based testing";
4. Clarifies the definitions of "legitimate medical explanation" and "observable
behavior";
5. Provides a definition of "random testing";
6. Clarifies that an. employer may not perform a substance use test on its employees
unless its facilities comply with the requirements for a qualified testing laboratory; and
7. Makes a number of technical changes.
FISCAL NOTE REQCTRED
(See attached)
COMMITTEE AMENDMENT
Approved: 03/24/26
L.RL.
LD 2110 LR 2789(02)
An Act to Update Employer Substance Use Testing Policy Requirements
Fiscal Note for Bill as Amended by Committee Amendment
Committee: Labor
Fiscal Note Required: Yes
"K(\\-WO)
Fiscal Note
Minor cost increase - General Fund
Fiscal Detail and Notes
This bill clarifies requirements for employer substance use testing and specifies that Department of Labor
(department) authorization is required for any substance use program, Any additional costs to the department fror
provisions of this bill are expected to be minor and can be absorbed within existing budgeted resources,
LR2789(02) - Fiscal Note - Page 1 of 1