An Act to Update Employer Substance Use Testing Policy
Maine Legislature, Session 132, LD 2110
Committee: Labor
Sponsors: SKOLD
Amends: 26 MRSA §681, 26 MRSA §682, 26 MRSA §683, 26 MRSA §684, 26 MRSA §685, 26 MRSA §686

Legislative Document
No. 2110
H.P. 1425
House of Representatives, January 7, 2026
An Act to Update Employer Substance Use Testing Policy 
Requirements
Submitted by the Department of Labor pursuant to Joint Rule 203.
Reference to the Committee on Labor suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative SKOLD of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  26 MRSA §681, sub-§1, ¶C, as amended by PL 2017, c. 407, Pt. A, §105, 
is further amended to read:
C.  Ensure that an employee with substance use disorder receives an opportunity for 
rehabilitation and treatment of the disease and returns to work as quickly as possible; 
and
Sec. 2.  26 MRSA §681, sub-§1, ¶D, as enacted by PL 1989, c. 832, §1, is amended 
to read:
D.  Eliminate drug use in the workplace.; and
Sec. 3.  26 MRSA §681, sub-§1, ¶E is enacted to read:
E.  Protect employees in the State from injuries and illnesses caused by impairment in 
the workplace.
Sec. 4.  26 MRSA §681, sub-§2, as amended by PL 2017, c. 407, Pt. A, §105, is 
further amended to read:
2.  Employer discretion.  This subchapter does not require or encourage employers to 
conduct substance use testing of employees or applicants.  An employer who that chooses 
to conduct such testing is limited by this subchapter, but may establish policies that are 
supplemental to and not inconsistent with this subchapter. An employer that chooses to 
conduct testing pursuant to this subchapter shall follow the procedures of the employer's 
substance use testing policy fully once a test has been initiated.
Sec. 5.  26 MRSA §681, sub-§3, as amended by PL 2017, c. 407, Pt. A, §105, is 
further amended by amending the first blocked paragraph to read:
A labor organization with a collective bargaining agreement effective in the State may 
conduct a program of substance 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.
Sec. 6.  26 MRSA §681, sub-§8, as amended by PL 2017, c. 407, Pt. A, §105, is 
further amended to read:
8.  Nuclear power plants; federal law Federally mandated substance use testing 
program.  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 
substance use 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, its applicants for employment and its employees, including independent 
contractors and employees of independent contractors who are working for or at the 
facilities of an employer who that is subject to such a federally mandated substance use 
testing program. To qualify for the limitation under this paragraph, the employer must 
have at least one position located in the State for which substance use testing is 
federally mandated.
Sec. 7.  26 MRSA §682, sub-§1-A is enacted to read:
1-A.  Arbitrary.  "Arbitrary," with respect to substance use testing, means that the 
frequency of substance use testing and the selection of persons being tested are based on a 
set event, such as an employment anniversary or promotion. Arbitrary testing also includes 
client-required or site-specific testing based on criteria unrelated to substance use, such as 
when a client requires testing prior to work on a project or specific site.
Sec. 8.  26 MRSA §682, sub-§3-A, as amended by PL 2017, c. 407, Pt. A, §106, is 
repealed.
Sec. 9.  26 MRSA §682, sub-§3-B is enacted to read:
3-B.  Legitimate medical explanation.  “Legitimate medical explanation” means an 
explanation provided by an employee that justifies a confirmed positive result on a test for 
a tested-for substance. "Legitimate medical explanation" includes, but is not limited to, use 
of a controlled substance with a prescription, legal use of cannabis pursuant to the Maine 
Medical Use of Cannabis Act or any other explanation that, in the professional judgment 
of the medical review officer, constitutes a legitimate medical use of a tested-for substance.
Sec. 10.  26 MRSA §682, sub-§3-C is enacted to read:
3-C.  Medical review officer.  “Medical review officer” means a person who is a 
licensed physician and who is responsible for receiving and reviewing laboratory results 
generated by an employer’s substance use testing program and evaluating medical 
explanations for certain substance use test results.
Sec. 11.  26 MRSA §682, sub-§5, as amended by PL 2017, c. 407, Pt. A, §106, is 
further amended to read:
5.  Positive Non-negative test result.  "Positive Non-negative test result" means a test 
result that indicates the presence of a substance in the tested sample above the cutoff level 
of the test but that has not been confirmed by a confirmation test.
A.  "Confirmed positive result" means a confirmation test result that indicates the 
presence of a substance above the cutoff level in the tested sample.
Sec. 12.  26 MRSA §682, sub-§5-A is enacted to read:
5-A.  Observable behavior.  “Observable behavior" means observable physical, 
behavioral and psychological signs that provide a reasonable suspicion that an employee is 
impaired by substance use, including signs regarding appearance, behavior, speech and 
smell that are usually associated with substance use.
Sec. 13.  26 MRSA §682, sub-§6, as amended by PL 2017, c. 407, Pt. A, §106, is 
further amended to read:
6.  Probable cause Reasonable suspicion.  "Probable cause Reasonable suspicion" 
means a reasonable ground for belief in the existence of facts that induce a person to believe 
that an employee may be under the influence of a substance, provided except that the 
existence of probable cause 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, unless the employee's observable behavior indicates 
impairment at the time of the accident.
Sec. 14.  26 MRSA §682, sub-§7, as amended by PL 2017, c. 407, Pt. A, §106, is 
further amended to read:
7.  Substance use test.  "Substance 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.  "Substance use test" 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 use test performed through the use of 
immunoassay technology or a federally recognized substance 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.
(1)  A screening test of an applicant's or employee's urine or saliva may be 
performed at the point of collection through the use of a noninstrumented point of 
collection test device approved cleared 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 use test that is used to verify the 
presence of a substance indicated by an initial positive non-negative screening test 
result and is a federally recognized substance use test or is performed through the use 
of liquid or gas chromatography-mass spectrometry.
C.  "Federally recognized substance use test" means any substance use test recognized 
by the federal Food and Drug Administration as accurate and reliable through the 
administration's clearance or approval process.
Sec. 15.  26 MRSA §683, sub-§2, as amended by PL 2017, c. 407, Pt. A, §107 and 
PL 2021, c. 669, §5, is further amended to read:
2.  Written policy.  Before establishing any substance use testing program, an 
employer shall develop or, as required in section 684, subsection 3, paragraph C, appoint 
an employee committee to develop a written policy in compliance with this subchapter 
providing for, at a minimum:
A.  The procedure and consequences of an employee's voluntary admission of a 
substance use problem and any available assistance, including the availability and 
procedure of the employer's employee assistance program;
B.  When substance 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 reasonable suspicion testing of employees, an 
employer may designate that all positions are subject to testing; and
(2)  The procedure to be followed in selecting employees to be tested on a random 
or arbitrary basis under section 684, subsection 3;
C.  The collection of samples.
(1)  The collection of any sample for use in a substance 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)  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 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 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 to be tested for;
G.  The cutoff levels for both screening tests and confirmation tests at which the 
presence of a substance in a sample is considered a positive non-negative test result.
(1)  Cutoff levels for confirmation tests for cannabis 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 
regulating screening test and confirmation test cutoff levels for other 
substances, 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 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 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;
H.  The consequences of a confirmed positive substance use test result;
I.  The consequences for refusal to submit to a substance use test;
J.  Opportunities and procedures for rehabilitation following a confirmed positive 
result;
K.  A procedure under which an employee or applicant who receives a confirmed 
positive result may appeal and contest the accuracy of that result.  The policy must 
include a mechanism that provides an opportunity to appeal at no cost to the appellant; 
and
L.  Any other matters required by rules adopted by the Department of Labor under 
section 687.
An employer shall consult with the employer's employees in the development of any 
portion of a substance use 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.
Sec. 16.  26 MRSA §683, sub-§3, as amended by PL 2017, c. 407, Pt. A, §107, is 
further amended to read:
3.  Copies to employees and applicants.  The employer shall provide each employee 
with a copy of the written policy approved by the Department of Labor under section 686 
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 
policy under subsection 2 before administering a substance use test to the applicant.  The 
30-day and 60-day notice periods provided for employees under this subsection do not 
apply to applicants.
Sec. 17.  26 MRSA §683, sub-§5, ¶B, as amended by PL 2019, c. 627, Pt. B, §7; 
PL 2021, c. 669, §5; and PL 2025, c. 316, §3, is further amended to read:
B.  In 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 
trained and 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 
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 rules adopted 
under section 687, other substances 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)  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.
Sec. 18.  26 MRSA §683, sub-§5-A, as amended by PL 2017, c. 407, Pt. A, §107, 
is further amended to read:
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 
non-negative test result.
B.  Any sample that results in a negative test result must be destroyed.  Any sample 
that results in a positive non-negative 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 
non-negative 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.
Sec. 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.  An employer may not perform any 
substance use test administered to any of that employer's employees.  An employer may 
collect a sample from any of that employer's employees if the employer's facilities comply 
with the requirements for collecting samples under this subsection.  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 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 
Pathologists or the American Association for Clinical Chemistry Diagnostics and 
Laboratory Medicine or a successor.
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:
(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 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.
Sec. 20.  26 MRSA §683, sub-§7, as amended by PL 2017, c. 407, Pt. A, §107, is 
further amended to read:
7.  Testing procedure.  A testing laboratory shall perform a screening test on each 
sample submitted by the employer for only those substances 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 non-negative, a confirmation test 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 must be disposed of immediately after testing.
Sec. 21.  26 MRSA §683, sub-§7-A is enacted to read:
7-A.  Medical review officer.  A medical review officer may not be an employee of 
the employer for which the medical review officer reviews laboratory results. The medical 
review officer must have knowledge and clinical experience of controlled substance use 
disorders and be knowledgeable in deviations of substance use testing specimens and 
causes of invalid testing results. The medical review officer shall act independently in 
carrying out any testing reviews or recommendations.
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 
positive non-negative 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 shall ensure that an employee's 
unconfirmed positive non-negative 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;
Sec. 23.  26 MRSA §683, sub-§8, ¶B-1 is enacted to read:
B-1.  An applicant or employee must be given the opportunity to contest a non-negative 
test result by discussing with the medical review officer or confirmation testing 
laboratory representative any legitimate reason for the non-negative test result. If the 
medical review officer or laboratory representative determines that there is a legitimate 
medical explanation for the non-negative test result, the result must be reported to the 
employer as negative and all records relating to the test must be destroyed. If the 
medical review officer or laboratory representative determines there is no legitimate 
medical explanation for the non-negative test result, the result must be reported to the 
employer as confirmed positive.
Sec. 24.  26 MRSA §683, sub-§8, ¶E is enacted to read:
E.  A confirmed positive result may be reported to an employer only by a medical 
review officer. The medical review officer shall contact the employee or applicant and, 
if necessary, the employee’s or applicant’s physician to review each confirmed positive 
result or any test found to be adulterated, substituted or otherwise invalid to determine 
whether or not there is a legitimate medical explanation for the result. Any exchange 
between the employee or applicant and the medical review officer is not subject to the 
physician-patient privilege, but the medical review officer shall protect the 
confidentiality of the substance use testing information as otherwise provided in this 
subchapter. The medical review officer may not disclose the presence or absence of 
any physical or mental condition of the employee or applicant or the presence or 
absence of any substances other than those allowed to be tested for under the 
Department of Health and Human Services laboratory testing rules.
Sec. 25.  26 MRSA §684, sub-§2, as amended by PL 2017, c. 407, Pt. A, §108, is 
further amended to read:
2.  Probable cause Reasonable suspicion testing of employees.  An employer may 
require, request or suggest that an employee submit to a substance use test if the employer 
has probable cause reasonable suspicion to test the employee believe that, based on 
observable behaviors, the employee may be impaired.
A.  The employee's immediate supervisor, other supervisory personnel, a licensed 
physician or nurse, or the employer's security personnel must make the determination 
of probable cause reasonable suspicion.
B.  The supervisor or other person must state, in writing, the facts upon which the 
determination made under paragraph A is based and provide a copy of the statement to 
the employee prior to the test's being conducted.
Sec. 26.  26 MRSA §684, sub-§3, as amended by PL 2017, c. 407, Pt. A, §108, is 
further amended to read:
3.  Random or arbitrary 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 
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 
September 30, 1989, 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 
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 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 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 
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.  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 testing program under this paragraph if the 
employer is required to test employees to retain a contract.
(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 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 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.
Arbitrary testing may be conducted only on an employee whose position is of a nature that 
could pose a potential threat to the health or safety of the public or coworkers if the 
employee is under the influence of a substance.
Sec. 27.  26 MRSA §684, sub-§5, as amended by PL 2017, c. 407, Pt. A, §108, is 
further amended to read:
5.  Testing upon return to work.  If an employee who has received a confirmed 
positive result returns to work with the same employer, whether or not the employee has 
participated in a rehabilitation program under section 685, subsection 2, the employer may 
require, request or suggest that the employee submit to a one unannounced subsequent 
substance use test anytime between 90 days and one year after the date of the employee's 
prior test.  A test may be administered under this subsection in addition to any tests 
conducted under subsections 2 and 3.  An employer may require, request or suggest that an 
employee submit to a substance use test during the first 90 days after the date of the 
employee's prior test only as provided in subsections 2 and 3.
Sec. 28.  26 MRSA §685, sub-§2, ¶A, as amended by PL 1995, c. 324, §7, is further 
amended to read:
A.  Subject to any limitation of the Maine Human Rights Act or any other state law, 
including laws relating to the medical use of cannabis, or federal law, an employer may 
use a confirmed positive result or refusal to submit to a test as a factor in any of the 
following decisions:
(1)  Refusal to hire an applicant for employment or refusal to place an applicant on 
a roster of eligibility;
(2)  Discharge of an employee;
(3)  Discipline of an employee; or
(4)  Change in the employee's work assignment.
Sec. 29.  26 MRSA §685, sub-§2, ¶B, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended to read:
B.  Before taking any action described in paragraph A in the case of an employee who 
receives an initial confirmed positive result, an employer shall provide the employee 
with an opportunity to participate for up to 6 months 12 weeks in a rehabilitation 
program designed to enable the employee to avoid future use of a substance and to 
participate in an employee assistance program, if the employer has such a program.  
The employer may take any action described in paragraph A if the employee receives 
a subsequent confirmed positive result from a test administered by the employer under 
this subchapter.
Sec. 30.  26 MRSA §685, sub-§2, ¶C, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended by amending subparagraph (1), division (a) to read:
(a)  Except to the extent that costs are covered by a group health insurance 
plan, the costs of the public or private rehabilitation program must be equally 
divided between the employer and employee if the employer has more than 20 
full-time employees are the sole responsibility of the employee.  This 
requirement does not apply to municipalities or other political subdivisions of 
the State or to any employer when the employee is tested because of the alcohol 
and controlled substance testing mandated by the federal Omnibus 
Transportation Employee Testing Act of 1991, Public Law 102-143, Title V.  
If necessary, the employer shall assist in financing the cost share of the 
employee through a payroll deduction plan.
Sec. 31.  26 MRSA §685, sub-§2, ¶C, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended by repealing subparagraph (1), division (b).
Sec. 32.  26 MRSA §685, sub-§2, ¶C, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended by amending subparagraph (2) to read:
(2)  An employer may not take any action described in paragraph A while an 
employee is participating in a rehabilitation program, except as provided in 
subparagraph (2‑A) and except that an employer may change the employee's work 
assignment or suspend the employee from active duty to reduce any possible safety 
hazard.  Except as provided in subparagraph (2‑A), an employee's pay or benefits 
may not be reduced while an employee is participating in a rehabilitation program, 
provided that the employer is not required to pay the employee for periods in which 
the employee is unavailable for work for the purposes of rehabilitation or while the 
employee is medically disqualified.  The employee may apply normal sick leave 
and vacation time, if any, for these periods.
Sec. 33.  26 MRSA §685, sub-§2, ¶C, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended by amending subparagraph (2-A) to read:
(2-A)  A rehabilitation or treatment provider shall promptly notify the employer if 
the employee fails to comply with the prescribed rehabilitation program before the 
expiration of the 6-month 12-week period provided in paragraph B.  Upon receipt 
of this notice, the employer may take any action described in paragraph A.
Sec. 34.  26 MRSA §685, sub-§2, ¶C, as amended by PL 2017, c. 407, Pt. A, §109, 
is further amended by amending subparagraph (3) to read:
(3)  Except as provided in divisions division (a) and (b), upon successfully 
completing the rehabilitation program, as determined by the rehabilitation or 
treatment provider after consultation with the employer, the employee is entitled 
to return to the employee's previous job with full pay and benefits unless conditions 
unrelated to the employee's previous confirmed positive result make the 
employee's return impossible.  Reinstatement of the employee may not conflict 
with any provision of a collective bargaining agreement between the employer and 
a labor organization that is the collective bargaining representative of the unit of 
which the employee is or would be a part.  If the rehabilitation or treatment provider 
determines that the employee has not successfully completed the rehabilitation 
program within 6 months 12 weeks after starting the program, the employer may 
take any action described in paragraph A.
(a)  If the employee who has completed rehabilitation previously worked in an 
employment position subject to random or arbitrary testing under an 
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.  A reduction may 
not be made in the employee's previous benefits or rate of pay while the 
employee is awaiting reassignment to work or working in a position other than 
the previous job.  The employee must be reinstated to the previous position or 
to another position with an equivalent rate of pay and benefits and with no loss 
of seniority within 6 months after returning to work in any capacity with the 
employer unless the employee has received a subsequent confirmed positive 
result within that time from a test administered under this subchapter or unless 
conditions unrelated to the employee's previous confirmed positive test result 
make that reinstatement or reassignment impossible.  Placement of the 
employee in suitable work and reinstatement may not conflict with any 
provision of a collective bargaining agreement between the employer and a 
labor organization that is the collective bargaining representative of the unit of 
which the employee is or would be a part.
(b)  Notwithstanding division (a), if an employee who has successfully 
completed rehabilitation is medically disqualified, the employer is not required 
to reinstate the employee or find suitable work for the employee during the 
period of disqualification.  The employer is not required to compensate the 
employee during the period of disqualification.  Immediately after the 
employee's medical disqualification ceases, the employer's obligations under 
division (a) attach as if the employee had successfully completed rehabilitation 
on that date.
Sec. 35.  26 MRSA §686, sub-§1, ¶B-1 is enacted to read:
B-1.  An employer shall notify the department in writing if the employer chooses to 
discontinue an approved substance use testing policy. The notice must include the 
effective date of the discontinuation. Once the discontinuation is approved by the 
department, the employer must be put into an inactive status and may not conduct 
substance use testing, unless mandated by federal law to test employees. An employer 
that has discontinued an approved substance use testing policy shall notify the 
department in writing if the employer chooses to reinstate a prior approved substance 
use testing policy.
Sec. 36.  26 MRSA §686, sub-§2, ¶D, as enacted by PL 1997, c. 49, §1, is amended 
to read:
D.  The rules may establish model applicant policies and employee probable cause 
reasonable suspicion policies and provide for expedited approval and registration for 
employers adopting such model policies.  The rules adopted under this paragraph are 
routine technical rules pursuant to Title 5, chapter 375, subchapter II‑A 2-A.
SUMMARY
This bill updates and clarifies certain statutes governing employers administering 
substance use tests, including the following:
1. Requiring that an applicant or employee must be given an opportunity to contest a 
non-negative result; 
2. Requiring that results must be reported to an employer by a medical review officer; 
3. Reducing the rehabilitation program opportunity based on a confirmed positive 
result from 6 months to 12 weeks and placing the sole responsibility of the cost on the 
employee; 
4. Requiring that testing laboratories be able to process blood tests;
5. Allowing an employer that complies with the requirements governing testing 
facilities to be considered a qualified testing laboratory to collect samples from employees; 
and  
6. Making other technical changes.