PRINTER'S NO. 897
No. 827 Session of 1987
INTRODUCED BY PITTS, LETTERMAN, D. W. SNYDER, SHOWERS, CHADWICK,
MORRIS, FREIND, CARLSON, FLICK, MERRY, SIRIANNI, GEIST,
GLADECK, CLYMER, CORNELL, NAHILL, WOGAN, ARGALL, FOX, BUNT,
HERSHEY, LEH, JOHNSON, BRANDT, BIRMELIN, DISTLER, JACKSON,
HONAMAN, NOYE, ROBBINS, FOSTER, PERZEL, SAURMAN, KENNEY,
HECKLER, VROON, HERMAN, CIMINI, DORR, LASHINGER, BARLEY,
SCHEETZ, SCHULER, McCLATCHY, GRUPPO, SEMMEL, GALLEN, RAYMOND,
BLACK, BOOK AND DIETTERICK, MARCH 11, 1987
REFERRED TO COMMITTEE ON LABOR RELATIONS, MARCH 11, 1987
AN ACT
1 Providing for substance-abuse testing; providing for a cause of
2 action; providing penalties; and conferring powers and duties
3 on the Department of Health.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Substance-
8 Abuse Testing Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Alcohol." Ethyl alcohol of any degree of proof originally
14 produced by the distillation of fermented liquid, whether
15 rectified or diluted and regardless of origin; liquor; or malt
1 or brewed beverages.
2 "Applicant." An individual applying for employment or an
3 employee applying for a new position with a current employer.
4 "Compelling interest." An interest that justifies the
5 administration of a drug test for the protection of the health
6 and safety of the public, another employee or the employee
7 affected by drug use.
8 "Confirmation test." A second analysis, by an alternate
9 chemical method, to substantiate the presence of alcohol, drugs
10 or drug metabolites in a sample. The term includes a gas
11 chromatography/mass spectrometry test, high pressure liquid
12 chromatography, gas chromatography, high performance thin layer
13 chromatography, and equal or more reliable methods.
14 "Drug." A substance, other than alcohol, that has known
15 mind-altering or function-altering effects on a human being. The
16 term includes controlled dangerous substances and controlled
17 substance analogs or volatile substances which produce the
18 psychological and physiological effects of a controlled
19 dangerous substance through deliberate inhalation.
20 "Employee." An individual engaged in service to an employer.
21 "Employer." A public employer or a private employer.
22 "Initial screening test." An initial analysis designed to
23 determine presumptively those samples which may contain alcohol,
24 drugs or drug metabolites at or above a certain minimum
25 concentration.
26 "Liquor." Alcoholic, spirituous, vinous, fermented or other
27 alcoholic beverage, or combination of liquors and mixed liquor,
28 a part of which is spirituous, vinous, fermented or otherwise
29 alcoholic. The term includes drinks or drinkable liquids,
30 preparations or mixtures and reused, recovered or redistilled
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1 denatured alcohol usable or taxable for beverage purposes which
2 contain more than .5% of alcohol by volume, except pure ethyl
3 alcohol and malt or brewed beverages.
4 "Malt or brewed beverages." Beer, lager beer, ale, porter or
5 similar fermented malt beverage containing .5% or more of
6 alcohol by volume, by whatever name the beverage is called.
7 "Prescription or nonprescription medication." A drug
8 prescribed for use by a physician or other medical practitioner
9 licensed to issue prescriptions or a drug that is authorized for
10 general distribution and use in the treatment of human diseases,
11 ailments or injuries under the Federal Food, Drug, and Cosmetic
12 Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.).
13 "Private employer." An individual, firm, partnership,
14 association or corporation of this Commonwealth. The term
15 includes agents or officers.
16 "Public employer." The Commonwealth; a political
17 subdivision; and a board, commission, agency or instrumentality
18 of either. The term includes agents or officers.
19 "Reasonable suspicion." Opinion based on specific
20 articulable facts and reasonable inferences drawn from those
21 facts in light of experience.
22 "Sample." A human body part or product medically or
23 chemically capable of revealing the presence of a drug or
24 alcohol.
25 "Substance-abuse test." A test administered for the purpose
26 of determining the presence or absence of drugs or alcohol
27 within a person's body.
28 Section 3. Private employment.
29 (a) Applicant testing.--A private employer may, as a
30 condition of hiring, require an applicant to submit to a
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1 substance-abuse test:
2 (1) A private employer who engages in applicant
3 substance-abuse testing shall notify the applicant, in
4 writing, prior to the collection of a sample for a substance-
5 abuse test, that the sample will be tested for the presence
6 of drugs or alcohol. A private employer may request an
7 applicant to sign a statement indicating that the applicant
8 understands that the sample will be tested for the presence
9 of drugs or alcohol and that the applicant voluntarily
10 consents to the substance-abuse test.
11 (2) A substance-abuse test administered upon an
12 applicant shall be in conformity with the standards
13 established in this act.
14 (b) Employee testing.--A private employer may, as a
15 condition of continued employment, require an employee to submit
16 to a substance-abuse test under any of the following
17 circumstances:
18 (1) The private employer has reasonable suspicion that
19 the employee is under the influence of drugs or alcohol.
20 (2) The employee is involved in a work-related accident
21 where human error may be a factor.
22 (3) The employee has tested positively for the presence
23 of drugs or alcohol within the prior 12-month period.
24 (4) The test is conducted as part of an employee medical
25 examination which is part of the employer's established
26 policy and which is scheduled routinely for all members of an
27 employment classification.
28 (c) Rebuttable presumptions.--There is created a rebuttable
29 presumption that the employer had reasonable suspicion to test
30 for drugs or alcohol if a sample provided by the employee tests
19870H0827B0897 - 4 -
1 positive for drugs or alcohol on an initial screening
2 administered by the employer.
3 (d) Random tests.--A private employer may not require an
4 employee to submit to random or routine testing unless the
5 employee serves in an occupation for which the employer has a
6 compelling interest to administer a substance-abuse test.
7 Section 4. Public employment.
8 (a) Applicant testing.--A public employer may, as a
9 condition of hiring, require an applicant to submit to a
10 substance-abuse test.
11 (1) A public employer who engages in applicant
12 substance-abuse testing shall notify the applicant, in
13 writing, prior to the collection of a sample for a substance-
14 abuse test, that the sample will be tested for the presence
15 of drugs or alcohol. A public employer may request an
16 applicant to sign a statement indicating that the applicant
17 understands that the sample will be tested for the presence
18 of drugs or alcohol and that the applicant voluntarily
19 consents to the substance-abuse test.
20 (2) A substance-abuse test administered upon an
21 applicant shall be in conformity with the standards
22 established in this act.
23 (b) Employee testing.--A public employer may, as a condition
24 of continued employment, require an employee to submit to a
25 substance-abuse test under any of the following circumstances:
26 (1) The public employer has reasonable suspicion that
27 the employee is under the influence of drugs or alcohol.
28 (2) The employee is involved in a work-related accident
29 where human error may be a factor.
30 (3) The employee has tested positively for the presence
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1 of drugs or alcohol within the prior 12-month period.
2 (4) The test is conducted as part of an employee medical
3 examination which is part of the employer's established
4 policy and which is scheduled routinely for all members of an
5 employment classification.
6 (c) Rebuttable presumptions.--There is created a rebuttable
7 presumption that the employer had reasonable suspicion to test
8 for drugs and alcohol if a sample provided by the employee tests
9 positive for drugs or alcohol on an initial screening
10 administered by the employer.
11 (d) Random tests.--A public employer may not require an
12 employee to submit to random or routine testing unless the
13 employee serves in an occupation for which the employer has a
14 compelling interest to administer a substance-abuse test.
15 Section 5. Standards.
16 (a) Written policy.--
17 (1) A substance-abuse test may only be conducted in
18 accordance with a written substance-abuse testing policy,
19 which is established by the employer, posted in a conspicuous
20 location within the workplace and made available to employees
21 and applicants. The applicant policy shall be in accordance
22 with sections 3(a)(1) or 4(a)(1). The employee policy shall
23 contain, but not be limited to:
24 (i) A general statement describing the employer's
25 policy on employee substance use and identifying both the
26 grounds on which an employee may be required to submit to
27 a substance-abuse test and the actions the employer may
28 take against an employee on the basis of a positive test
29 result.
30 (ii) An explanation of the guarantees of
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1 confidentiality provided by this act and the employer's
2 policy.
3 (iii) An instruction to the employee about the
4 reporting opportunities for the employee's use of
5 prescription or nonprescription medications.
6 (iv) An explanation of the consequences of refusing
7 to submit to the substance-abuse test.
8 (2) An employee required to submit to a drug test may be
9 requested by the private employer to sign a statement
10 indicating that the employee has read and understands the
11 employer's substance-abuse testing policy. An employee's
12 refusal to sign a statement shall not invalidate the
13 objective results of a test, or bar the employer from
14 administering the test or taking disciplinary action
15 consistent with the terms of an applicable collective
16 bargaining agreement and consistent with the employer's
17 substance-abuse policy.
18 (b) Opportunity to document use of prescription or
19 nonprescription medication.--The employer shall provide the
20 employee to be tested with the opportunity to submit medical
21 documentation that may verify the employee's use of a
22 prescription or nonprescription medication. Verification shall
23 not preclude the administration of the substance-abuse test.
24 (c) Documented chain of custody.--Samples produced for
25 substance-abuse testing shall be handled in a way which
26 documents that the integrity and identity of the sample have not
27 been violated.
28 (d) Confirmation tests.--An initial screening test
29 indicating a positive result must be verified by a confirmation
30 test.
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1 (e) Confidentiality of test results.--
2 (1) Information obtained by the employer through a
3 substance-abuse test administered upon an applicant or
4 employee may not be released to a person other than the
5 applicant or employee, medical personnel or other personnel
6 of the employer as designated by the employer on a need-to-
7 know basis, unless one of the following applies:
8 (i) The applicant or employee has expressly granted
9 permission for the employer to release the information.
10 (ii) The information is released as material
11 evidence upon a showing of good cause in a filed action
12 or is released in compliance with Federal and
13 Commonwealth statutes and regulations as part of the
14 employer's defense in a grievance proceeding, arbitration
15 or administrative hearing, Federal or Commonwealth
16 investigation or employer's internal grievance
17 investigation of a complaint.
18 (2) The employer shall expunge from the employee's
19 records a record of the drug testing incident if, upon
20 confirmation, an employee's sample produces a negative
21 result, a positive result for a legally prescribed drug or a
22 positive result for normal dosages of a legal nonprescribed
23 medication.
24 (f) Notification of results.--The employer shall notify the
25 applicant or employee, in writing, of the results of a
26 substance-abuse test performed on a sample produced by the
27 applicant or employee within five working days of the employer's
28 receipt of the substance-abuse test from the licensed laboratory
29 which conducted the test.
30 (g) Retest.--Every sample which produces a positive result
19870H0827B0897 - 8 -
1 on a confirmation test shall be preserved by the licensed
2 laboratory which conducts the confirmation test for a period of
3 60 days from the time results of the confirmation tests are
4 mailed to the employer. During this period, the employee who
5 provided the sample shall be permitted by the employer to have a
6 portion of a sample retested at the employee's expense at a
7 licensed laboratory chosen by the employee or a representative,
8 if the employee's chosen medical facility assumes responsibility
9 for the transfer of the portion of the sample and for the
10 integrity of the chain of custody under subsection (c) during
11 the transfer.
12 (h) Licensed laboratories.--Substance-abuse tests shall only
13 be conducted through laboratories licensed by the Department of
14 Health under the act of September 26, 1951 (P.L.1539, No.389),
15 known as The Clinical Laboratory Act, or licensed under the
16 Clinical Laboratories Improvement Act (Public Law 90-174, 42
17 U.S.C. § 263a), and approved by the department.
18 Section 6. Disciplinary action.
19 (a) Initial screening.--An employer shall not take
20 disciplinary action against an employee solely based on the
21 results of an initial screening test.
22 (b) Confirmation test.--An employer may take disciplinary
23 action or discharge an employee who either refuses to submit to
24 a drug test or tests positive for drugs or alcohol on a
25 confirmation test if the disciplinary action or discharge is
26 consistent with Federal and State laws, the provisions of this
27 act, the employer's policy and an applicable collective
28 bargaining agreement. An employer who discharges an employee on
29 the basis of a positive result on a confirmed test shall be
30 considered to have discharged the employee for cause.
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1 (c) Exceptions.--This section shall not prevent an employer
2 from doing one of the following:
3 (1) Temporarily reassigning the employee to another
4 position, pending the completion of a confirmation test.
5 (2) Temporarily suspending the employee pending
6 completion of a confirmation test. After a suspension under
7 this paragraph, the employee shall be reinstated with full
8 pay, benefits and rights for the period of suspension or
9 reassessment and all reference to the incident shall be
10 expunged from the employee's employment records if the
11 employee's sample, upon confirmation, produces a negative
12 result, a positive result for a legally prescribed drug or a
13 positive result for normal dosages of legal nonprescribed
14 medication.
15 Section 7. Unemployment compensation.
16 An employee discharged on the basis of a drug or alcohol
17 confirmation test shall be considered to have been discharged
18 for willful misconduct under the act of December 5, 1936 (2nd
19 Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment
20 Compensation Law.
21 Section 8. Civil action.
22 Upon a violation, except de minimis violations, of the
23 provisions of this act and the exhaustion of any employer-
24 employee internal administrative remedies that may be available,
25 an aggrieved employee or former employee may institute a civil
26 action in a court of competent jurisdiction, within six months
27 of the alleged violation or the exhaustion of internal
28 administrative remedies available to the employees, for the
29 following relief:
30 (1) An injunction to restrain continued violation of
19870H0827B0897 - 10 -
1 this act.
2 (2) The reinstatement of the employee to the same
3 position held before the unlawful disciplinary action or to
4 an equivalent position.
5 (3) The reinstatement of full fringe benefits and
6 seniority rights.
7 (4) The compensation for lost wages, benefits and other
8 remuneration.
9 (5) Other remedies, at law or in equity, as the court
10 may determine appropriate under the circumstances.
11 Section 9. Penalties.
12 A person who administers a substance-abuse test which, in its
13 methodologies or procedures, violates the regulations of the
14 Department of Health under section 10(a) commits a misdemeanor
15 of the third degree and shall, upon conviction, be sentenced to
16 pay a fine of $250. A person who administers a substance-abuse
17 test which, in its methodologies or procedures, violates the
18 regulations of the Department of Health under section 10(a),
19 after being found guilty or pleading guilty or no contest to an
20 offense under this subsection, commits a misdemeanor of the
21 third degree and shall, upon conviction, be sentenced to pay a
22 fine of $1,000. For purposes of this subsection, a failure to
23 use approved test methods or procedures on a single sample shall
24 constitute a separate offense.
25 Section 10. Regulations.
26 The Department of Health shall promulgate, within 180 days of
27 enactment of this act, regulations to do all of the following:
28 (1) Establish procedural and methodological standards
29 for technical aspects of substance-abuse tests, including,
30 but not limited to, procedural guidelines to ensure the
19870H0827B0897 - 11 -
1 integrity of the chain of custody, methodological and
2 technical standards for initial screening tests and
3 confirmation tests, acceptability standards for the margins
4 of error associated with particular substance-abuse tests and
5 concentration or volume thresholds at which a substance-abuse
6 test result may be deemed a positive test result for a
7 specific drug or alcohol.
8 (2) Monitor the performance of laboratories and
9 personnel to assure compliance with this act and regulations
10 promulgated under this section.
11 Section 11. Severability.
12 The provisions of this act are severable. If any provision of
13 this act or its application to any person or circumstance is
14 held invalid, the invalidity shall not affect other provisions
15 or applications of this act which can be given effect without
16 the invalid provision or application.
17 Section 12. Effective date.
18 This act shall take effect as follows:
19 (1) Section 10 of this act shall take effect
20 immediately.
21 (2) The remainder of this act shall take effect in 240
22 days.
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