PRINTER'S NO. 2446
No. 1928 Session of 1987
INTRODUCED BY COHEN, D. W. SNYDER, PRESSMANN, SAURMAN, KOSINSKI,
BELFANTI, BELARDI, VEON, LEVDANSKY, DeLUCA, HAYDEN, DALEY,
PISTELLA, TRUMAN, JOSEPHS, KUKOVICH, MELIO, RITTER AND
HARPER, NOVEMBER 10, 1987
REFERRED TO COMMITTEE ON LABOR RELATIONS, NOVEMBER 10, 1987
AN ACT
1 Providing for drug testing in public and private employment; and
2 providing for testing standards.
3 TABLE OF CONTENTS
4 Section 1. Short title.
5 Section 2. Declaration of policy.
6 Section 3. Definitions.
7 Section 4. Prohibitions.
8 Section 5. Application.
9 Section 6. Chain of custody of evidence.
10 Section 7. Use of test results.
11 Section 8. Employee assistance program.
12 Section 9. Costs of drug testing.
13 Section 10. Collective bargaining agreements.
14 Section 11. Regulations.
15 Section 12. Penalties.
16 Section 13. Civil action.
17 Section 14. Restriction on employer liability.
1 Section 15. Severability.
2 Section 16. Effective date.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Employee
7 Rehabilitation and Drug Testing Standards Act.
8 Section 2. Declaration of policy.
9 (a) Declaration.--The General Assembly declares that
10 substance abuse is a significant problem in the workplace. It is
11 also declared that drug testing, which has been widely accepted
12 by employers in an attempt to combat this problem, has proven to
13 be an indignity and a threat to the civil liberties of employees
14 and job applicants. It is the intent of the General Assembly to
15 protect the liberties and dignities of public and private
16 employees and of those seeking employment within this
17 Commonwealth.
18 (b) Findings.--The General Assembly has determined that
19 employment decisions on hiring job applicants and on promoting,
20 disciplining and discharging employees frequently are made on
21 the basis of nonspecific drug screening tests. To protect
22 against these injustices and to assure reliable uniform
23 standards, legislation is deemed necessary. The accuracy of
24 screening tests has been widely questioned because of
25 technological deficiencies:
26 (1) Prescription medication, over-the-counter
27 medication, common foodstuffs and passive inhalation have
28 been detected in drug tests, and results have been mistakenly
29 assumed to have been caused by illicit substances, causing
30 citizens of this Commonwealth to lose gainful employment
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1 unnecessarily. Despite manufacturers' recommendations to
2 utilize confirmation tests, employers are finding that such
3 tests are more expensive and less cost effective to use.
4 (2) Drug tests do not measure, nor do they profess to
5 measure, impairment of individuals tested for drugs. Without
6 such critical information, drug tests cannot serve as reasons
7 for discipline or discharge of employees, nor should they
8 prohibit otherwise qualified job applicants from the ability
9 to obtain employment.
10 (3) Employers have the right and responsibility to
11 maintain a safe, healthy workplace. Likewise, employees and
12 applicants have the responsibility to follow the policies and
13 directions of employers. Drug testing, however, has shown the
14 propensity to hurt the innocent along with the guilty.
15 Section 3. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 "Chain of custody of evidence." Documentation which shows
20 the location and possession of a specimen from the time the
21 specimen is provided until the time the test is performed and
22 which proves that the integrity and identity of a specimen has
23 not been violated.
24 "Confirmation test." A drug test that is used subsequent to
25 an initial screening test to verify the presence of a drug or
26 drug metabolite in a tested sample of a specimen and which
27 employs a different methodology than employed in an initial drug
28 screen.
29 "Confirmed positive result." A confirmation test result
30 which indicates the presence of a substance of abuse above the
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1 cut-off level in a tested sample of a specimen.
2 "Department." The Department of Health of the Commonwealth.
3 "Drug screen." An initial test which presumptively
4 determines whether or not a drug or drug metabolite is present
5 in a tested sample of a specimen above a certain minimum
6 concentration.
7 "Employee." A person currently employed, laid off,
8 terminated with reemployment rights or on leave of absence.
9 "Employer." An individual, person, partnership, association,
10 corporation, the Commonwealth or any of its political
11 subdivisions, or an agency, authority, board or commission
12 created by the Commonwealth or a political subdivision.
13 "Job applicant." A person who has made application for
14 employment.
15 "Licensed clinical laboratory." A place, establishment or
16 institution licensed by the Department of Health under the act
17 of September 26, 1951 (P.L.1539, No.389), known as The Clinical
18 Laboratory Act, and organized and operated primarily for the
19 performance of bacteriological, biochemical, microscopical,
20 serological or parasitological tests by the practical
21 application of one or more of the fundamental sciences to
22 material originating from the human body, by use of specialized
23 apparatus, equipment and methods, for the purpose of obtaining
24 scientific data which may be used as an aid to ascertain the
25 state of health.
26 "Negative test result." A test result which indicates that a
27 substance of abuse is not present in a tested sample of a
28 specimen in a concentration above the cut-off level, or that a
29 substance of abuse is present in a tested sample of a specimen
30 in a concentration below the cut-off level.
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1 "Neutral observer." A licensed physician or nurse who is not
2 a permanent or regular employee of the employer who imposes the
3 drug tests, or an employee of any agent, parent-company or
4 subsidiary of the employer, or contracted for any other purpose.
5 "Positive test result." A test result which indicates the
6 presence of a substance of abuse in a tested sample of a
7 specimen above the cut-off level of the test.
8 "Progressive disciplinary action." A series of sanctions
9 based on employment and graduated in severity, imposed by an
10 employer against an employee in response to inappropriate
11 conduct or performance in the workplace.
12 "Progressive rehabilitation." A series of graduated
13 counseling efforts, rehabilitation efforts, or both, supplied by
14 an employer for an employee in response to impaired performance
15 in the workplace.
16 "Reasonably articulable suspicion of intoxication." A
17 rational belief, supportable by direct observation and
18 articulable reasons, that an individual is under the influence
19 of a chemical substance which adversely affects behavior.
20 "Sample." A portion of a specimen.
21 "Specimen." A human body part or product medically or
22 chemically capable of revealing the presence of substances in
23 the body of the person from whose body the part or product is
24 extracted.
25 Section 4. Prohibitions.
26 (a) Random tests.--It shall be unlawful for an employer to
27 impose drug testing of employees or job applicants in a random,
28 arbitrary, selective, or systematic, comprehensive nature.
29 (b) Testing without reasonable cause.--It shall be unlawful
30 for an employer to require or request an employee or applicant
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1 to submit to drug screens or confirmation tests without having a
2 reasonably articulable suspicion of intoxication causing
3 impairment of the ability of an employee being asked for a
4 specimen to perform normal duties.
5 (c) Screen as sole basis of disqualification.--It shall be
6 unlawful for an employer to discipline or discharge an employee
7 or to refuse to hire a job applicant solely on the basis of
8 results of a drug screen.
9 (d) Inquiry about prior use.--It shall be unlawful to make
10 any inquiry of a job applicant about drug screen or confirmation
11 test results during any employment or military service prior to
12 that for which he or she is applying, or to require such
13 information for the basis of employment.
14 (e) Testing without written notice.--It shall be unlawful
15 for an employer to require a drug screen of an employee or job
16 applicant without providing that employee or applicant with
17 written notice, under sections 5(b) and 7(b)(3).
18 (f) Observation.--It shall be unlawful for a person to
19 observe or directly supervise the employee or applicant while in
20 the act of providing a sample for drug testing unless the person
21 is a neutral observer as defined by this act.
22 (g) Testing without assistance program.--It shall be
23 unlawful for an employer to impose drug screening on employees
24 unless the employer has established a functioning employee
25 assistance program or comparable program which is in place and
26 available for employees.
27 (h) Testing only one employee classification.--It shall be
28 unlawful for an employer to impose drug screening on employees
29 unless the employer imposes drug screens upon management,
30 including the employer, upon receipt of a written request of an
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1 employee, if the request conforms to the reasonable suspicion
2 provisions of subsection (b).
3 Section 5. Application.
4 (a) Written drug testing policy required.--An employer who
5 imposes drug testing under this act shall establish a written
6 policy with respect to drug testing. A copy of the policy and
7 this act shall be provided to each employee prior to the
8 commencement of the employer's drug testing program. A copy of
9 the policy and this act shall be provided to each job applicant
10 at the time of application.
11 (b) Prior written notice required.--Before testing, written
12 notification must be given to an employee or applicant who is
13 requested or required to submit to a drug screen. The
14 notification shall include the reasonably articulable suspicion
15 upon which the employer bases his belief that the employee is
16 intoxicated, as well as the name of the licensed clinical
17 laboratory which will analyze the sample provided.
18 (c) Drug testing service required.--A drug screen required
19 by an employer shall be performed by a licensed clinical
20 laboratory which is specifically approved by the department to
21 offer drug testing services.
22 (d) Drug screens.--
23 (1) Positive drug screen results may not be used for
24 medical treatment decisions or disciplinary purposes,
25 including, but not limited to, discharge, without
26 confirmation testing.
27 (2) When a drug screen has shown a positive test result
28 which concludes the presence of the tested-for substance, the
29 employer must have two confirmation tests performed on the
30 same specimen.
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1 (3) The Secretary of Health shall determine which
2 initial, nonconfirmation drug screening tests are acceptable.
3 (4) No drug screen shall be used for a purpose other
4 than to establish the presence of an unauthorized illegal
5 substance.
6 (e) Confirmation tests.--
7 (1) A confirmation test shall be performed at two
8 separate licensed clinical laboratories, one of the
9 employer's choice and one of the choice of the employee or
10 job applicant.
11 (2) The Secretary of Health shall determine the
12 acceptable methods of separate confirmation tests, unrelated
13 to, performed subsequent to, and utilizing a different
14 methodology from the initial drug screen.
15 (3) No confirmation test shall be used for a purpose
16 other than to establish confirmation of the presence of
17 metabolites of the same illegal substance allegedly found in
18 the initial drug screen.
19 Section 6. Chain of custody of evidence.
20 (a) Neutral observers.--The chain of custody of the evidence
21 may include observation or supervision by a neutral observer of
22 the sample being provided if the employer chooses to have a
23 neutral observer. Only the neutral observer may observe the
24 providing of the specimen.
25 (b) Duties of persons in chain of custody.--A concise chain
26 of custody of a specimen subject to a drug screen will be kept
27 by the employer. When a specimen is provided, the employer, in
28 the presence of the employee or applicant and the neutral
29 observer, will seal and label a shatterproof container which
30 contains the specimen. The employee or applicant, the employer,
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1 and the neutral observer will initial the sealed container,
2 verifying that the specimen is the one that was provided. The
3 neutral observer shall provide a written affidavit testifying
4 that the specimen was collected by forensically acceptable
5 procedures. The employer will keep a log sheet specifying the
6 location of the specimen at all times and the identity of the
7 person in whose possession the specimen is maintained. The
8 licensed clinical laboratory will certify that the specimen was
9 received properly sealed and labeled by the employer and
10 initialed by the employee or applicant, the employer and the
11 neutral observer. Licensed clinical laboratories which perform
12 testing on samples of the specimen will keep a log sheet
13 specifying the location of the samples at all times, the person
14 in whose possession the samples are maintained, a list of
15 persons who have access to the samples while in storage,
16 temporary or otherwise, and the time, date, location and result
17 of tests performed on the sample.
18 (c) Break in the chain.--Should the chain of custody of a
19 specimen be broken or incomplete, the specimen, samples and the
20 results of the screening may not be considered to have come from
21 the individual who is alleged to have provided the sample in
22 question. The test results may not be used as evidence for any
23 purpose relating to an employee or job applicant.
24 Section 7. Use of test results.
25 (a) Confidentiality.--
26 (1) Confidentiality of the results of a drug screen will
27 be maintained by and among the employer, agents of the
28 employer, including the employee's immediate supervisor on a
29 provable need-to-know basis, the employee or job applicant
30 and the licensed clinical laboratories which performed the
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1 testing. Only the employee or job applicant may reveal the
2 results to another person, an employer or an institution.
3 (2) An employer, past or present, and clinical
4 laboratories are expressly prohibited from releasing drug
5 test results to anyone other than those specified in
6 paragraph (1), unless required by law or order of a court of
7 competent jurisdiction to do so.
8 (3) A licensed clinical laboratory may not release
9 information unrelated to the presence or absence of a
10 chemical substance that is likely to cause the impairment of
11 the user or information regarding the person from whom the
12 specimen originates, other than the test performed on samples
13 of the specimen for the alleged chemical substance suspected
14 to be present in the specimen and the results of the
15 appropriate test.
16 (b) Subsequent written notification.--
17 (1) The employee or job applicant shall receive written
18 notice from the employer and from the licensed clinical
19 laboratory of test results from the licensed clinical
20 laboratory which performed the test.
21 (2) Written notice to the employee or job applicant of
22 test results shall occur within ten days of the employer's
23 receipt of test results from the licensed clinical laboratory
24 which performed the drug screen.
25 (3) Subsequent written notification from an employer
26 shall include the following:
27 (i) A statement informing the employee or applicant
28 of the reason for the administration of the drug screen,
29 including specific grounds the employer had for forming a
30 reasonably articulable suspicion of intoxication.
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1 (ii) A copy of the unbroken chain of custody of the
2 evidence of the specimen and samples taken.
3 (4) Subsequent written notification from the licensed
4 clinical laboratory which performed a drug test shall
5 include:
6 (i) A list of specific tests or techniques used.
7 (ii) A list of all screen and confirmation test
8 results.
9 (c) Negative results.--If a drug screen produces negative
10 results, the specimen and sample shall be discarded immediately,
11 and all records or alternative documentation giving rise to the
12 screen shall be destroyed by the employer, agents of the
13 employer and the licensed clinical laboratory.
14 (d) Positive test results.--
15 (1) If both the drug screen and confirmation tests yield
16 positive results, the employee or applicant shall have an
17 opportunity to present medical evidence that prescription or
18 nonprescription over-the-counter medications or other
19 nonwork-impairing substances ingested were taken during the
20 period preceding the drug screen. After the licensed clinical
21 laboratory is given this information, it shall advise the
22 affected employee or applicant and the employer, in writing,
23 of the impact the ingested substance may have on the accuracy
24 of screen results. If the laboratory decides that the
25 information the employee or applicant provides explains the
26 positive results, the laboratory shall nullify the report
27 that the test results were positive. The laboratory shall
28 inform the employer, in writing, to treat the results as if
29 they were negative and shall provide the affected employee or
30 applicant with a copy of this writing. The employer shall
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1 consider this information before imposing disciplinary action
2 or making a hiring decision.
3 (2) If positive test results are confirmed and if
4 permitted medications or alternative nonwork-impairing
5 substances have been ruled out as having caused the positive
6 test results, sanctions imposed by the employer on an
7 affected employee shall follow a clear pattern of progressive
8 discipline and rehabilitation, except as limited by
9 employment agreement, employment contract, collective
10 bargaining agreement or decision of an arbitrator, court or
11 other tribunal. An employer who intends to use the results of
12 a drug test as the basis for disciplinary action must first
13 follow the following minimum standards of progressive
14 discipline and rehabilitation:
15 (i) Absent contract provisions to the contrary, upon
16 the first confirmed positive result, an employer:
17 (A) May offer a temporary reassignment of the
18 employee's duties.
19 (B) May offer counseling and rehabilitative
20 measures in accordance with employee assistance
21 program policies.
22 (C) Shall schedule the employee for a follow-up
23 test.
24 (ii) Absent contract provisions to the contrary,
25 upon confirmed positive results of a separate,
26 subsequent, unrelated second test, the employer shall
27 require rehabilitative measures under the employer's
28 employee assistance program. The employer shall schedule
29 the employee for a follow-up test after the completion of
30 such rehabilitation.
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1 (iii) Absent contract provisions to the contrary,
2 upon confirmed positive results of a separate,
3 subsequent, unrelated third test, the employer may
4 permanently reassign or dismiss the employee.
5 (3) Employers may not take additional disciplinary
6 action, including, but not limited to, discharging an
7 employee who successfully completes rehabilitation or
8 retesting required in paragraph (2)(i) or (iii).
9 (4) Progressive steps shall be at least 30 days apart,
10 or longer as promulgated by department regulations or as
11 necessary to meet requirements of the employee assistance
12 program. Days spent in counseling or rehabilitation may not
13 count towards the 30-day minimum.
14 (5) Progressive discipline may be imposed for a maximum
15 of three years from the first incidence of a confirmed
16 positive test. If at the end of the three-year period the
17 employee has not had a positive result on the third test or
18 has not needed a second or third test, the employer will
19 destroy all records of tests and results for that employee
20 for the previous three years. A subsequent incidence of
21 positive confirmation of a drug test will begin a new three-
22 year period and shall be treated as a first incidence.
23 (6) If positive results of the testing of a job
24 applicant have been confirmed and other medications,
25 prescription and nonprescription, and alternative nonwork-
26 impairing substances have been ruled out as having caused the
27 positive results, the employer shall have the right to refuse
28 to hire the applicant on the basis of the confirmation tests.
29 Section 8. Employee assistance program.
30 (a) General rule.--An employer who imposes drug testing
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1 shall develop or contract the services of an employee assistance
2 program, hereinafter also referred to as an EAP, which conforms
3 with the following guidelines:
4 (1) Policy statement.--An employer shall adopt a written
5 policy statement on drug abuse problems covered by an EAP.
6 This shall be signed by the chief executive officer and union
7 head, where appropriate, and shall reflect management and
8 labor attitudes and agreements as to the program's
9 objectives. The policy shall specify the responsibilities of
10 management, union representatives and employees as they
11 relate to the program. The EAP may reflect current management
12 responsibility and authority and union prerogatives.
13 Participation in the EAP may not affect future employment or
14 career advancement, nor shall participation protect the
15 employee from continued substandard job performance or rule
16 infractions.
17 (2) Confidentiality.--Client records maintained by an
18 EAP may not become part of an employee's personnel file.
19 Written rules shall be established specifying the following:
20 (i) How records shall be maintained.
21 (ii) The length of time records shall be maintained.
22 (iii) Persons who shall have access to them.
23 (iv) What information shall be released to whom.
24 (v) The uses which may be made of records for
25 purposes of research, evaluation and reports.
26 (vi) The conditions which may be placed on uses of
27 records for purposes of research, evaluation and reports.
28 (3) Procedures for individuals referred by management or
29 union representatives.--An EAP shall establish written
30 procedures for action initiated by management or union
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1 representatives. The procedures shall provide for the
2 following:
3 (i) Assessment by EAP staff.
4 (ii) Evaluation by professionals.
5 (iii) Referral for treatment.
6 (iv) Feedback to the referral source.
7 (v) Follow-up by the staff.
8 (4) Procedures for voluntary use of the program by an
9 employee or by a family member of an employee.--Procedures
10 for individuals who refer themselves shall provide for the
11 following:
12 (i) Assessment by EAP staff.
13 (ii) Evaluation by professionals.
14 (iii) Referral for treatment.
15 (iv) Follow-up by the staff.
16 (v) Confidentiality. The program may not initiate
17 contact with management concerning individuals who refer
18 themselves.
19 (b) Administration.--An employee assistance program shall be
20 administered as follows:
21 (1) Operation of or responsibility for the EAP shall be
22 positioned at an organizational level which insures the
23 involvement of senior management or union leadership in
24 sustaining the program.
25 (2) The physical location of the EAP shall facilitate
26 access while insuring confidentiality.
27 (3) An EAP shall utilize a recordkeeping system which
28 protects the identity of the client, while facilitating case
29 management and follow-up and providing ready access to
30 statistical information.
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1 (4) There shall be a review of medical and disability
2 benefits to insure that plans adequately cover appropriate
3 diagnosis and treatment for alcohol, drug and mental health
4 problems. Where feasible, coverage shall include outpatient
5 and day treatment care. EAP staff members shall be familiar
6 with provisions of the medical and disability benefit plans
7 so they can advise clients on the extent, nature and cost of
8 the recommended treatment and reimbursement available.
9 (5) The organization shall conduct a legal review of the
10 program to insure adequate protection for EAP staff and the
11 organization against malpractice liability claims.
12 (6) EAP staff shall combine to have the following
13 qualifications:
14 (i) Appropriate managerial and administrative
15 experience.
16 (ii) Skills in identifying problems, interviewing,
17 motivating, referring clients, and, where appropriate,
18 counseling or related fields.
19 (iii) Experience and expertise in dealing with drug-
20 related problems.
21 (c) Education and training.--The EAP administrator shall
22 inform employees and their families about the organization's EAP
23 and the services it offers and update this information. Staff
24 shall educate employees about recognized problem areas,
25 especially drug abuse. Staff shall inform and update management
26 and union representatives about their roles in providing EAP
27 services to employees.
28 (d) Resource file on providers of assistance.--An EAP shall
29 maintain correct information about drug abuse treatment services
30 and other resources.
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1 (e) Evaluation of program.--The EAP administrator shall
2 conduct periodic reviews of the program and objectively evaluate
3 its operation and performance.
4 (f) Evaluation of staff performance.--The EAP administrator
5 shall conduct an annual evaluation of EAP staff performance.
6 Section 9. Costs of drug testing.
7 An employer who implements a policy of drug testing shall
8 bear the expenses associated with drug testing, including, but
9 not limited to, the following:
10 (1) The cost of the drug screen.
11 (2) The cost of a neutral observer.
12 (3) The cost of confirmation tests.
13 (4) Reimbursement of necessary employee travel expenses.
14 (5) Employee assistance program.
15 (6) Counseling fees.
16 (7) Rehabilitative measures.
17 Section 10. Collective bargaining agreements.
18 This act may not be construed to prevent the negotiation of
19 collective bargaining agreements that provide greater protection
20 to employees who are subject to drug testing than is provided by
21 this act.
22 Section 11. Regulations.
23 (a) General rulemaking.--The department may promulgate and
24 enforce regulations necessary to carry out the provisions of
25 this act. The department shall ensure optimal accuracy of tests
26 by enforcing the highest possible standards for each type of
27 drug testing. If a manufacturer or laboratory advertises or
28 claims to employ the highest accuracy standards of specific
29 tests, the department shall enforce the use of this standard.
30 (b) Extension of 30-day rule.--The department may promulgate
19870H1928B2446 - 17 -
1 and enforce regulations to lengthen the time period required
2 under section 7(d)(4), if necessary to establish a time period
3 consistent with test limitations. The department shall ensure
4 that a time requirement established by regulation prevents a
5 second positive test result from the same incidence of drug
6 exposure.
7 (c) Levels of incidence.--The department shall adopt
8 regulations of acceptable levels set within known tolerances of
9 test methods and within a range which reduces the likelihood of
10 positive test results due to the presence of a substance which
11 was not intentionally ingested.
12 (d) Enforcement of EAP standards.--The department shall
13 adopt regulations to certify employee assistance programs to
14 ensure that EAP standards outlined in section 8 are enforced.
15 Section 12. Penalties.
16 A person who violates this act commits a misdemeanor of the
17 third degree and shall, upon conviction, be sentenced to pay a
18 fine not exceeding $5,000. A subsequent violation constitutes a
19 misdemeanor of the second degree punishable by a fine not
20 exceeding $10,000.
21 Section 13. Civil action.
22 A person who suffers from a violation of this act may bring a
23 civil action for appropriate injunctive relief or damages, or
24 both, within 90 days after the occurrence of the alleged
25 violation.
26 Section 14. Restriction on employer liability.
27 An employer is not liable for damages to a plaintiff for any
28 of the following:
29 (1) Hiring a job applicant with a positive result of
30 drug screen or confirmation test administered under this act.
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1 (2) Failing to suspend, discipline or discharge an
2 employee with a positive result of a drug screen or
3 confirmation test administered under this act.
4 (3) Failing to impose a drug screen administered under
5 this act to an employee or job applicant.
6 Section 15. Severability.
7 The provisions of this act are severable. If a provision of
8 the act or its application is held invalid, the invalidity shall
9 not affect other provisions or applications which can be given
10 effect independently of the invalid provision or application.
11 Section 16. Effective date.
12 This act shall take effect in 30 days.
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