SCS CSHB 207(L&C): "An Act relating to employer drug and alcohol testing programs."
00SENATE CS FOR CS 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 if the action is based on drug or 25 alcohol testing unless 26 (1) the results of the test were disclosed to a person other than the 27 employer, an authorized employee, agent or representative of the employer, the tested 28 employee, the tested prospective employee, or another person authorized or privileged 29 by law to receive the information; 30 (2) the information disclosed was a false positive test result; 31 (3) the false positive test result was disclosed negligently; and
01 (4) all elements of an action for defamation of character, libel, slander, 02 or damage to reputation as established by law are satisfied. 03 Sec. 23.10.615. Employer's compliance voluntary. Compliance with 04 AS 23.10.600 - 23.10.699 by employers is voluntary. 05 Sec. 23.10.620. Employer policy. (a) Under AS 23.10.600 - 23.10.699, an 06 employer may only carry out the testing or retesting for the presence or evidence of 07 use of drugs or alcohol after adopting a written policy for the testing and retesting and 08 informing employees of the policy. The employer may inform employees by 09 distributing a copy of the policy to each employee subject to testing or making the 10 policy available to employees in the same manner as the employer informs its 11 employees of other personnel practices, including inclusion in a personnel handbook 12 or manual or posting in a place accessible to employees. The employer shall inform 13 prospective employees that they must undergo drug testing. 14 (b) The written policy on drug and alcohol testing must include, at a minimum, 15 (1) a statement of the employer's policy respecting drug and alcohol 16 use by employees; 17 (2) a description of those employees or prospective employees who are 18 subject to testing; 19 (3) the circumstances under which testing may be required; 20 (4) the substances as to which testing may be required; 21 (5) a description of the testing methods and collection procedures to be 22 used, including an employee's right to a confirmatory drug test to be reviewed by a 23 licensed physician or doctor of osteopathy after an initial positive drug test result in 24 accordance with AS 23.10.640(d); 25 (6) the consequences of a refusal to participate in the testing; 26 (7) any adverse personnel action that may be taken based on the testing 27 procedure or results; 28 (8) the right of an employee, on the employee's request, to obtain the 29 written test results and the obligation of the employer to provide written test results 30 to the employee within five working days after a written request to do so, so long as 31 the written request is made within six months after the date of the test;
01 (9) the right of an employee, on the employee's request, to explain in 02 a confidential setting, a positive test result; if the employee requests in writing an 03 opportunity to explain the positive test result within 10 working days after the 04 employee is notified of the test result, the employer must provide an opportunity, in 05 a confidential setting, within 72 hours after receiving the employee's written notice, 06 or before taking adverse employment action; 07 (10) a statement of the employer's policy regarding the confidentiality 08 of the test results. 09 (c) An employer may require the collection and testing of a sample of an 10 employee's or prospective employee's urine or breath for any job-related purpose 11 consistent with business necessity and the terms of the employer's policy, including 12 (1) investigation of possible individual employee impairment; 13 (2) investigation of accidents in the workplace; an employee may be 14 required to undergo drug testing or alcohol impairment testing for an accident if the 15 test is taken as soon as practicable after an accident and the test is administered to 16 employees who the employer reasonably believes may have contributed to the accident; 17 (3) maintenance of safety for employees, customers, clients, or the 18 public at large; 19 (4) maintenance of productivity, the quality of products or services, or 20 security of property or information; 21 (5) reasonable suspicion that an employee may be affected by the use 22 of drugs or alcohol and that the use may adversely affect the job performance or the 23 work environment. 24 (d) In addition to tests required under (c) of this section, an employer may 25 require employees or groups of employees to undergo drug testing on a random or 26 chance basis. 27 (e) If an employer institutes a policy of drug testing or alcohol impairment 28 testing under AS 23.10.600 - 23.10.699, the policy must identify which employees or 29 positions are subject to testing. An employer must test all or part of the work force 30 based on consideration of safety for employees, customers, clients, or the public at 31 large. An employer may not initiate a testing program under AS 23.10.600 - 23.10.699
01 until at least 30 days after the employer notifies employees of the employer's intent 02 to implement the program and makes written copies of the policy available as required 03 by (a) of this section. 04 (f) The provisions of AS 23.10.600 - 23.10.699 may not be construed to 05 discourage, restrict, limit, prohibit, or require on-site drug testing or alcohol 06 impairment testing. 07 Sec. 23.10.630. Collection of samples. (a) An employer may test an 08 employee for the presence of drugs or for alcohol impairment. An employer may test 09 a prospective employee for the presence of 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. Sample 19 collection shall be performed in a manner that guarantees the individual's privacy to 20 the maximum extent consistent with ensuring that the sample is not contaminated, 21 adulterated, or misidentified. 22 (d) An employer shall pay the entire actual costs for drug testing and alcohol 23 impairment testing required of employees and prospective employees. An employer 24 shall also pay reasonable transportation costs to an employee if the required test is 25 conducted at a location other than the employee's normal work site. 26 Sec. 23.10.640. Testing procedures. (a) Sample collection and testing for 27 alcohol impairment and drugs under AS 23.10.600 - 23.10.699 shall be performed 28 under reasonable and sanitary conditions. The person collecting samples shall 29 document the sample, including labeling the sample to preclude to the extent 30 reasonable the possibility of misidentification of the person tested in relation to the test 31 result provided, and shall provide the person to be tested with an opportunity to
01 provide medical information that may be relevant to the test, including identifying 02 current or recently used prescription and nonprescription drugs. 03 (b) Sample collection, storage, and transportation to the place of testing shall 04 be performed in a manner reasonably designed to preclude the possibility of sample 05 contamination, adulteration, or misidentification. 06 (c) Sample testing must comply with scientifically accepted analytical methods 07 and procedures. Except for on-site testing under AS 23.10.645, drug testing shall be 08 conducted at a laboratory approved or certified by the Substance Abuse and Mental 09 Health Services Administration or the College of American Pathologists, American 10 Association of Clinical Chemists. 11 (d) Drug testing, including on-site drug testing, must include confirmation of 12 a positive drug test result. The confirmation must be by use of a different analytical 13 process than was used in the initial drug screen. The second or confirmatory drug test 14 shall be a gas chromatography mass spectrometry. An employer may not rely on a 15 positive drug test unless the confirmatory drug test results have been reviewed by a 16 licensed physician or doctor of osteopathy. The physician or osteopath shall 17 (1) contact the employee within 48 hours and offer an opportunity to 18 discuss the confirming test result; 19 (2) interpret and evaluate the positive drug test results for legal use; and 20 (3) report test results that have been caused by prescription medication 21 as negative. 22 (e) A drug test conducted under this section or in an on-site test under 23 AS 23.10.645 for a drug for which the United States Department of Health and Human 24 Services has established a cutoff level shall be considered to have yielded a positive 25 result if the test establishes the presence of the drug at levels equal to or greater than 26 that cutoff level. For a drug for which the United States Department of Health and 27 Human Services has not established a cutoff level, the employer shall, in the written 28 policy under AS 23.10.620, inform employees of the cutoff level that the employer 29 will use to establish the presence of the drug. 30 Sec. 23.10.645. On-site testing. (a) An employer may include on-site drug 31 and alcohol tests of employees and prospective employees as part of the employer's
01 drug and alcohol testing policy under AS 23.10.600 - 23.10.699. In on-site testing 02 under this section, an employer may only use products approved by the Food and Drug 03 Administration for employee testing and shall use the products in accordance with the 04 manufacturer's instructions. On-site testing under this section may only be conducted 05 by a test administrator who is certified under AS 23.10.650(b). 06 (b) In on-site testing under this section, the specimen to be tested must be kept 07 in sight of the employee or applicant who is the subject of the test. The test 08 administrator shall 09 (1) conduct the test in a manner that allows the subject of the test to 10 observe the testing procedure and the results; in the case of a sight-impaired employee, 11 the employee may request the presence of an observer; however, the test administrator 12 is not required to delay collection of the sample or administration of the test because 13 of the sight-impaired employee's request; 14 (2) complete the sample documentation required under 15 AS 23.10.640(a); 16 (3) prepare a written record of the results of the on-site test. 17 (c) An employer may not take permanent employment action against an 18 employee based on an unconfirmed, screen, positive on-site test result. If an employer 19 takes temporary adverse employment action based on an on-site test result, the 20 employer shall restore the employee's wages and benefits if the confirmatory test result 21 is negative or if the employee demonstrates that the positive test result was caused by 22 drugs taken in accordance with a valid prescription of the employee or by lawful 23 nonprescription drugs. 24 Sec. 23.10.650. Training of test administrators. (a) Each employer shall 25 ensure that at least one designated employee receives at least 60 minutes of training 26 on alcohol misuse and at least an additional 60 minutes of training on the use of 27 controlled substances. The training will be used by the designee to determine whether 28 reasonable suspicion exists to require an employee to undergo testing under 29 AS 23.10.630. 30 (b) If an employer administers on-site drug or alcohol tests to test employees 31 or prospective employees under AS 23.10.645, the employer shall ensure that each
01 person who will be administering the on-site test receives training and meets the 02 qualifications of this subsection. An on-site test administrator must 03 (1) have been trained by the manufacturer of the test or the 04 manufacturer's representative on the proper procedure for administering the test and 05 accurate evaluation of on-site test results; training must be conducted in person by a 06 trainer from the manufacturer or the manufacturer's representative; 07 (2) be certified in writing by the manufacturer or the manufacturer's 08 representative as competent to administer and evaluate the on-site test; 09 (3) have been trained to recognize adulteration of a sample to be used 10 in on-site testing; and 11 (4) sign a statement that clearly states that the on-site test administrator 12 will hold all information related to any phase of a drug test confidential. 13 Sec. 23.10.655. Disciplinary procedures. (a) An employer may take adverse 14 employment action based on 15 (1) a positive drug test or alcohol impairment test result that indicates 16 a violation of the employer's written policy; 17 (2) the refusal of an employee or prospective employee to provide a 18 drug testing sample; or 19 (3) the refusal of an employee to provide an alcohol impairment testing 20 sample. 21 (b) Adverse employment action under (a) of this section may include 22 (1) a requirement that the employee enroll in an employer provided or 23 employer approved rehabilitation, treatment, or counseling program; the program may 24 include additional drug testing and alcohol impairment testing; the employer may 25 require participation in the program as a condition of employment; costs of 26 participating in the program may or may not be covered by the employer's health plan 27 or policies; 28 (2) suspension of the employee, with or without pay, for a designated 29 period of time; 30 (3) termination of employment; 31 (4) in case of drug testing, refusal to hire a prospective employee; and
01 (5) other adverse employment action. 02 Sec. 23.10.660. Confidentiality of results; access to records. A 03 communication received by an employer relevant to drug test or alcohol impairment 04 test results and received through the employer's testing program is a confidential and 05 privileged communication and may not be disclosed except 06 (1) to the tested employee or prospective employee or another person 07 designated in writing by the employee or prospective employee; 08 (2) to individuals designated by an employer to receive and evaluate 09 test results or hear the explanation of the employee or prospective employee; or 10 (3) as ordered by a court or governmental agency. 11 Sec. 23.10.670. Effect of mandatory testing obligations. An employer who 12 is obligated by state or federal requirements to have a drug testing or alcohol 13 impairment testing policy or program shall receive the full benefits of AS 23.10.600 - 14 23.10.699 even if the required policy or program is not consistent with AS 23.10.600 - 15 23.10.699, so long as the employer complies with the state or federal requirements 16 applicable to the employer's operations. 17 Sec. 23.10.699. Definitions. In AS 23.10.600 - 23.10.699, 18 (1) "alcohol" means ethanol, isopropanol, or methanol; 19 (2) "drugs" means a substance considered unlawful under AS 11.71 or 20 the metabolite of the substance; 21 (3) "drug testing" means testing for evidence of the use of a drug; 22 (4) "employee" means a person in the service of an employer; 23 (5) "employer" means a person who employs one or more full-time 24 employees under a contract of hire, express or implied, oral or written; 25 (6) "good faith" means reasonable reliance on fact, or that which is held 26 out to be factual, without the intent to deceive or be deceived and without reckless or 27 malicious disregard for the truth; 28 (7) "prospective employee" means a person who has made application 29 to an employer, whether written or oral, to become an employee; 30 (8) "random" means a scientifically valid method that ensures that all 31 covered employees have an equal chance of being selected;
01 (9) "sample" means urine or breath from the person being tested.