Code of Maine Rules › 12 - DEPARTMENT OF LABOR › 170 - BUREAU OF LABOR STANDARDS › Chapter 7 - RULES RELATING TO SUBSTANCE ABUSE TESTING › Section 170-7-3 - REQUIREMENTS FOR EMPLOYERS' WRITTEN SUBSTANCE ABUSE POLICY

Current through 2024-29, July 17, 2024
A. Policy Format
1. Individual employer policies must be a
				single document) written in a manner that is understandable to a large majority
				of the employees and applicants. Provisions should be made within the policy
				for additional information or assistance to be made available to an employee or
				applicant, if requested.
2. To
				facilitate prompt review of and action on individually submitted employer
				policies, a specific format is requested. Failure to comply with the requested
				format may result in the submission being returned without Department
				approval.
3. The authorizing
				statute is very specific in many areas; therefore, it is required that the
				employer use both the statute and Department of Labor and Human Service's rules
				in developing a policy.
4. The
				following outline should be used in developing a policy as a minimum standard.
				Employers are encouraged to write the policy as a narrative. The sections
				concerning probable cause testing of employees, random or arbitrary testing of
				employees, and testing of applicants are optional, but must be included if they
				are to be a part of the employer's substance abuse testing policy.
a. Covered Establishment
i. Company name
AA. Location
BB. Mailing address
CC. Phone number
ii. Contact regarding substance abuse testing
				policy
AA. Location
BB. Phone number
b. Scope of Testing
i. Substances to be tested for:
AA. Specify substances and specify for each
				as allowed by statute and Department of Human Services rules,
1 test procedure to be used and cut-off limit
				for positive screening test,
2 test
				procedure to be used and cut-off limit for positive confirmation
				test.
ii.
				Probable Cause Testing of Employees:
AA.
				Classifications or position titles of employees that will be tested based on
				probable cause. An employer may elect to cover all employees under probable
				cause testing.
BB. Classifications
				or position titles that may make a determination of probable cause.
CC. Method by which determination will be
				communicated to the employee.
iii. Random or Arbitrary Testing of
				Employees:
AA. If the employer and the
				employees have negotiated an agreement covering random or arbitrary testing of
				employees, the policy shall so state that it is a product of a bargained
				agreement and Identify those classifications or position titles that are
				subject to random or arbitrary testing, as well as the procedure for selecting
				those individuals to be tested.
The collective bargaining agreement or appropriate sections;
				  must be attached to the submission as an exhibit.
BB. If the employer does not have a
				collective bargaining agreement which covers random or arbitrary testing, the
				policy must show:
1 Those classifications or
				position titles which are subject to random or arbitrary testing.
a The policy must include for each
				classification or position title a concise statement as to why the work is of a
				nature which would create an unreasonable threat to the health or safety of the
				public or co-workers if the employee were under the influence of a substance of
				abuse.
(NOTE: It is the stated statutory intent that this section be
				  "narrowly construed.")
b A
				more complete description of each position and a full justification for random
				or arbitrary testing must be submitted as an attachment provided with the
				policy.
2 The procedure
				for selecting those individuals to be tested.
CC. An employer having 50 or more employees
				who are not covered by a collective bargaining agreement may establish a
				random. or arbitrary testing program which applies to all employees. The
				written policy with respect to the parts of the policy addressing the random or
				arbitrary testing program must meet the standards below.
1 The employer shall appoint a committee of
				employees to develop the random or arbitrary testing program. The committee
				must consist of:
a at least 10 of the
				employer's employees from a cross-section of employees eligible to be tested;
				and
b a medical professional
				trained in substance abuse testing procedures. If no such person is employed by
				the employer, the employer shall obtain the services of a person meeting these
				qualifications to serve on the committee.
2 Selection of employees to be tested under
				the random or arbitrary testing program must be done as follows:
a Selection of employees to be tested must be
				performed by a person or entity not subject to influence by the employer, such
				as a Medical Review Officer.
b
				Selection must be from a list of all subject employees provided by the
				employer. The list may not contain information that would identify the
				employees to the person or entity making the selection.
c Employees covered under a collective
				bargaining agreement may not be included in the testing allowed pursuant to
				this paragraph unless they agree to be included under a collective bargaining
				agreement.
3 The policy
				developed by the committee must be approved by the Department of Labor. The
				employer may not change the policy regarding the random or arbitrary testing
				program without approval of the committee. The employer may choose not to
				submit the random or arbitrary testing program for approval and not to
				establish random or arbitrary testing program.
4 The employer may not discriminate against
				employees who participate or refuse to participate on the committee.
iv. Testing of
				Applicants:
AA. Classifications or position
				titles to be tested. An employer may elect to cover all applicants under
				applicant testing.
c. Consequences of Testing:
i. Action to be taken for refusal to submit
				to a test.
AA. Employee
BB. Applicant
ii. Action to be taken between a test and
				receipt of test results.
iii.
				Action to be taken based on confirmed positive result from a test of an
				employee.
AA. Opportunity for
				rehabilitation
BB. Action to be
				taken upon refusal to use rehabilitation resources.
CC. Procedures for returning the employee to
				the previously held job or position after rehabilitation.
iv. Action to be taken based on a subsequent
				confirmed positive test result.
v.
				Action to be taken based on a confirmed positive result from a test of an
				applicant.
vi. Action to be taken
				based on an employee's voluntary admission of a substance abuse problem and
				description of any available assistance and procedure for the
				employee.
d. Testing
				Procedures:
i. Identify sample collection
				facility or facilities.
ii. Method
				of sample collection.
a Right of the testee
				to segregate a portion of the sample for testing at a laboratory of their
				choice.
b Procedure regarding
				removal of clothing. (Note: This should describe the specific procedure to be
				used at the facility or facilities where sample collection takes
				place.)
c Statement that the testee
				will not be observed, directly or indirectly.
d Any actions that will be taken to ensure
				that the sample has not been substituted, adulterated, diluted or otherwise
				tampered with must be described. These actions must conform with the Department
				of Human Services Rules.
e If and
				how the employer will use point of collect tests.
iii. Storage of sample.
iv. Chain of custody.
v. identify testing facility or
				facilities.
vi. Procedure for
				notifying employee or applicant of the result.
vii. Procedure for an employee or applicant
				to appeal and contest the accuracy of a confirmed positive result. At least one
				option for the appeal process must be at no cost to the employee or
				applicant.
e.
				Description of Rehabilitation Service
i.
				Description of employee assistance program services.
ii. Description of any additional
				rehabilitation services.
iii.
				Procedure to obtain services.
iv.
				Description of any possible employee payment for rehabilitation services
				allowed under 26 M.R.S.A. Section685, 2., c.