CSHB 207(L&C): "An Act relating to employer drug and alcohol testing programs."

00CS FOR HOUSE BILL NO. 207(L&C) 01 "An Act relating to employer drug and alcohol testing programs." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 23.10 is amended by adding new sections to read: 04 Article 9. Drug and Alcohol Testing by Employers. 05  Sec. 23.10.600. Employer protection from litigation. (a) If an employer has 06 established a drug and alcohol testing policy and initiated a testing program under 07 AS 23.10.600 - 23.10.699, a person may not bring an action for damages against the 08 employer for 09  (1) actions in good faith based on the results of a positive drug test or 10 alcohol impairment test; 11  (2) failure to test for drugs or alcohol impairment or failure to test for 12 a specific drug or another controlled substance; 13  (3) failure to test or, if tested, failure to detect a specific drug or other 14 substance, a medical condition, or a mental, emotional, or psychological disorder or

01 condition; or 02  (4) termination or suspension of a drug or alcohol prevention or testing 03 program or policy. 04  (b) A person may not bring an action for damages based on test results against 05 an employer who has established and implemented a drug and alcohol testing program 06 under AS 23.10.600 - 23.10.699 unless the employer's action was based on a false 07 positive test result and the employer knew or clearly should have known that the result 08 was in error and ignored the true test result because of reckless or malicious disregard 09 for the truth or the wilful intent to deceive or be deceived. 10  (c) In a claim, including a claim under AS 23.10.600 - 23.10.699, if it is 11 alleged that an employer's action was based on a false positive test result, 12  (1) there is a rebuttable presumption that the test result was valid if the 13 employer complied with the provisions of AS 23.10.600 - 23.10.699; and 14  (2) the employer is not liable for monetary damages if the employer's 15 reliance on a false positive test result was reasonable and in good faith. 16  (d) A person may not bring an action for damages against an employer for an 17 action taken related to a false negative drug test or alcohol impairment test. 18  (e) A person may not bring an action against an employer based on failure 19 of the employer to establish a program or policy on substance abuse prevention or to 20 implement drug testing or alcohol impairment testing. 21  Sec. 23.10.610. Limits on causes of action for disclosures. A person may 22 not bring an action for defamation of character, libel, slander, or damage to reputation 23 against an employer who has established a program of drug testing or alcohol 24 impairment testing under AS 23.10.600 - 23.10.699 unless 25  (1) the results of the test were disclosed to a person other than the 26 employer, an authorized employee, agent or representative of the employer, the tested 27 employee, the tested prospective employee, or another person authorized or privileged 28 by law to receive the information; 29  (2) the information disclosed was a false positive test result; 30  (3) the false positive test result was disclosed negligently; and 31  (4) all elements of an action for defamation of character, libel, slander,

01 or damage to reputation as established by law are satisfied. 02  Sec. 23.10.615. Employer's compliance voluntary. Compliance with 03 AS 23.10.600 - 23.10.699 by employers is voluntary. 04  Sec. 23.10.620. Employer policy. (a) Under AS 23.10.600 - 23.10.699, an 05 employer may only carry out the testing or retesting for the presence or evidence of 06 use of drugs or alcohol after adopting a written policy for the testing and retesting and 07 informing employees of the policy. The employer may inform employees by 08 distributing a copy of the policy to each employee subject to testing or making the 09 policy available to employees in the same manner as the employer informs its 10 employees of other personnel practices, including inclusion in a personnel handbook 11 or manual or posting in a place accessible to employees. The employer shall inform 12 prospective employees that they must undergo drug testing. 13  (b) The written policy on drug and alcohol testing must include, at a minimum, 14  (1) a statement of the employer's policy respecting drug and alcohol 15 use by employees; 16  (2) a description of those employees or prospective employees who are 17 subject to testing; 18  (3) the circumstances under which testing may be required; 19 (4) the substances as to which testing may be required; 20  (5) a description of the testing methods and collection procedures to be 21 used, including an employee's right to a confirmatory drug test to be reviewed by a 22 licensed physician or doctor of osteopathy after an initial positive drug test result in 23 accordance with AS 23.10.640(d); 24  (6) the consequences of a refusal to participate in the testing; 25  (7) any adverse personnel action that may be taken based on the testing 26 procedure or results; 27  (8) the right of an employee, on the employee's request, to obtain the 28 written test results and the obligation of the employer to provide written test results 29 to the employee within five working days of a written request to do so, provided the 30 written request is made within six months of the date of the test; 31  (9) the right of an employee, on the employee's request, to explain in

01 a confidential setting, a positive test result; if the employee requests in writing an 02 opportunity to explain the positive test result within 10 working days after the 03 employee is notified of the test result, the employer must provide an opportunity, in 04 a confidential setting, within 72 hours of receiving the employee's written notice, or 05 before taking adverse employment action; 06  (10) a statement of the employer's policy regarding the confidentiality 07 of the test results. 08  (c) An employer may require the collection and testing of a sample of an 09 employee's or prospective employee's urine or breath for any job-related purpose 10 consistent with business necessity and the terms of the employer's policy, including 11  (1) investigation of possible individual employee impairment; 12  (2) investigation of accidents in the workplace; an employee may be 13 required to undergo drug testing or alcohol impairment testing for an accident if the 14 test is taken as soon as practicable after an accident and the test is administered to 15 employees who the employer reasonably believes may have contributed to the accident; 16  (3) maintenance of safety for employees, customers, clients, or the 17 public at large; 18  (4) maintenance of productivity, the quality of products or services, or 19 security of property or information; 20  (5) reasonable suspicion that an employee may be affected by the use 21 of drugs or alcohol and that the use may adversely affect the job performance or the 22 work environment. 23  (d) In addition to tests required under (c) of this section, an employer may 24 require employees or groups of employees to undergo drug testing on a random or 25 chance basis. 26  (e) If an employer institutes a policy of drug testing or alcohol impairment 27 testing under AS 23.10.600 - 23.10.699, the policy must identify which employees or 28 positions are subject to testing. An employer must test all or part of the work force 29 based on consideration of safety for employees, customers, clients, or the public at 30 large. An employer may not initiate a testing program under AS 23.10.600 - 23.10.699 31 until at least 30 days after the employer notifies employees of the employer's intent

01 to implement the program and makes written copies of the policy available as required 02 by (a) of this section. 03  (f) The provisions of AS 23.10.600 - 23.10.699 may not be construed to 04 encourage, discourage, restrict, limit, prohibit, or require on-site drug testing or alcohol 05 impairment testing. 06  Sec. 23.10.630. Collection of samples. (a) An employer may require an 07 employee to undergo a test for the presence of drugs or for alcohol impairment. An 08 employer may require a prospective employee to undergo a test for the presence of 09 drugs. 10  (b) In order to test reliably, an employer may require an employee or 11 prospective employee to provide a sample of the individual's urine or breath and to 12 present reliable individual identification to the person collecting the sample. Collection 13 of the sample must conform to the requirements of AS 23.10.600 - 23.10.699. The 14 employer may designate the type of sample to be used for testing. 15  (c) An employer shall normally schedule a drug test or an alcohol impairment 16 test of employees during, or immediately before or after, a regular work period. 17 Alcohol impairment or drug testing required by an employer is considered to be work 18 time for the purposes of compensation and benefits for current employees. 19  (d) An employer shall pay the entire actual costs for drug testing and alcohol 20 impairment testing required of employees and prospective employees. An employer 21 shall also pay reasonable transportation costs to an employee if the required test is 22 conducted at a location other than the employee's normal work site. 23  Sec. 23.10.640. Testing procedures. (a) Sample collection and testing for 24 alcohol impairment and drugs under AS 23.10.600 - 23.10.699 shall be performed 25 under reasonable and sanitary conditions. The person collecting samples shall 26 document the sample, including labeling the sample to preclude to the extent 27 reasonable the possibility of misidentification of the person tested in relation to the test 28 result provided, and shall provide the person to be tested with an opportunity to 29 provide medical information that may be relevant to the test, including identifying 30 current or recently used prescription and nonprescription drugs. 31  (b) Sample collection, storage, and transportation to the place of testing shall

01 be performed in a manner reasonably designed to preclude the possibility of sample 02 contamination, adulteration, or misidentification. 03  (c) Sample testing must comply with scientifically accepted analytical methods 04 and procedures. Drug testing shall be conducted at a laboratory approved or certified 05 by the Substance Abuse and Mental Health Services Administration, the College of 06 American Pathologists, or the American Association of Clinical Chemists. 07  (d) For employees, drug testing must include confirmation of a positive drug 08 test result. The confirmation must be by use of a different analytical process than was 09 used in the initial drug screen. The second or confirmatory drug test shall be a gas 10 chromatography mass spectrometry. An employer may not rely on a positive drug test 11 unless the confirmatory drug test results have been reviewed by a licensed physician 12 or doctor of osteopathy. The physician or osteopath shall 13  (1) contact the employee within 48 hours and offer an opportunity to 14 discuss the confirming test result; 15  (2) interpret and evaluate the positive drug test results for legal use; and 16  (3) report test results that have been caused by prescription medication 17 as negative. 18  Sec. 23.10.650. Disciplinary procedures. (a) An employer may take adverse 19 employment action based on 20  (1) a positive drug test or alcohol impairment test result that indicates 21 a violation of the employer's written policy; 22  (2) the refusal of an employee or prospective employee to provide a 23 drug testing sample; or 24  (3) the refusal of an employee to provide an alcohol impairment testing 25 sample. 26  (b) Adverse employment action under (a) of this section may include 27  (1) a requirement that the employee enroll in an employer provided or 28 employer approved rehabilitation, treatment, or counseling program; the program may 29 include additional drug testing and alcohol impairment testing; the employer may 30 require participation in the program as a condition of employment; costs of 31 participating in the program may or may not be covered by the employer's health plan

01 or policies; 02  (2) suspension of the employee, with or without pay, for a designated 03 period of time; 04  (3) termination of employment; 05  (4) in case of drug testing, refusal to hire a prospective employee; and 06  (5) other adverse employment action. 07  Sec. 23.10.660. Confidentiality of results; access to records. A 08 communication received by an employer relevant to drug test or alcohol impairment 09 test results and received through the employer's testing program is a confidential and 10 privileged communication and may not be disclosed except 11  (1) to the tested employee or prospective employee or another person 12 designated in writing by the employee or prospective employee; 13  (2) to individuals designated by an employer to receive and evaluate 14 test results or hear the explanation of the employee or prospective employee; or 15  (3) as ordered by a court or governmental agency. 16  Sec. 23.10.670. Effect of mandatory testing obligations. An employer who 17 is obligated by state or federal requirements to have a drug testing or alcohol 18 impairment testing policy or program shall receive the full benefits of AS 23.10.600 - 19 23.10.699 even if the required policy or program is not consistent with AS 23.10.600 - 20 23.10.699, so long as the employer complies with the state or federal requirements 21 applicable to the employer's operations. 22  Sec. 23.10.699. Definitions. In AS 23.10.600 - 23.10.699, 23  (1) "alcohol" means ethanol, isopropanol, or methanol; 24  (2) "drugs" means a substance considered unlawful under AS 11.71 or 25 the metabolite of the substance; 26  (3) "drug testing" means testing for evidence of the use of a drug; 27  (4) "employee" means a person in the service of an employer; 28  (5) "employer" means a person who employs one or more full-time 29 employees under a contract of hire, express or implied, oral or written; 30  (6) "good faith" means reasonable reliance on fact, or that which is held 31 out to be factual, without the intent to deceive or be deceived and without reckless or

01 malicious disregard for the truth; 02  (7) "prospective employee" means a person who has made application 03 to an employer, whether written or oral, to become an employee; 04  (8) "random" means a scientifically valid method that ensures that all 05 covered employees have an equal chance of being selected; 06  (9) "sample" means urine or breath from the person being tested.