2015 -- H 5196

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - URINE AND BLOOD TESTS AS A

CONDITION OF EMPLOYMENT

     Introduced By: Representatives Morgan, Giarrusso, Chippendale, Price, and Nardolillo

     Date Introduced: January 21, 2015

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-6.5-1 and 28-6.5-2 of the General Laws in Chapter 28-6.5

entitled "Urine and Blood Tests as a Condition of Employment" are hereby amended to read as

follows:

     28-6.5-1. Testing permitted only in accordance with this section. -- (a) No employer

or agent of any employer shall, either orally or in writing, request, require, or subject any

employee to submit a sample of his or her urine, blood, or other bodily fluid or tissue for testing

as a condition of continued employment unless that test is administered in accordance with the

provisions of this section. Employers may require that an employee submit to a drug test if:

      (1) The employer has reasonable grounds to believe based on specific aspects of the

employee's job performance and specific contemporaneous documented observations, concerning

the employee's appearance, behavior or speech that the employee may be under the influence of a

controlled substance, which may be impairing his or her ability to perform his or her job;

      (2) The employee provides the test sample in private, outside the presence of any person;

      (3) Employees testing positive are not terminated on that basis, but are instead referred to

a substance abuse professional (a licensed physician with knowledge and clinical experience in

the diagnosis and treatment of drug related disorders, a licensed or certified psychologist, social

worker, or EAP professional with like knowledge, or a substance abuse counselor certified by the

National Association of Alcohol and Drug Abuse Counselors (all of whom shall be licensed in

Rhode Island)) for assistance; provided, that additional testing may be required by the employer

in accordance with this referral, and an employee whose testing indicates any continued use of

controlled substances despite treatment may be terminated;

      (4) Positive tests of urine, blood or any other bodily fluid or tissue are confirmed by a

federally certified laboratory by means of gas chromatography/mass spectrometry or technology

recognized as being at least as scientifically accurate;

      (5) The employer provides the test to the employee, at the employer's expense, the

opportunity to have the sample tested or evaluated by an independent testing facility and so

advises the employee;

      (6) The employer provides the test to the employee with a reasonable opportunity to

rebut or explain the results;

      (7) The employer has promulgated a drug abuse prevention policy which complies with

requirements of this chapter; and

      (8) The employer keeps the results of any test confidential, except for disclosing the

results of a "positive" test only to other employees with a job-related need to know, and to defend

against any legal action brought by the employee against the employer.

      (b) Any employer who subjects any person employed by him or her to this test, or

causes, directly or indirectly, any employee to take the test, except as provided for by this chapter,

shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars

($1,000) or not more than one year in jail, or both.

      (c) In any civil action alleging a violation of this section, the court may:

      (1) Award punitive damages to a prevailing employee in addition to any award of actual

damages;

      (2) Award reasonable attorneys' fees and costs to a prevailing employee; and

      (3) Afford injunctive relief against any employer who commits or proposes to commit a

violation of this section.

      (d) Nothing in this chapter shall be construed to impair or affect the rights of individuals

under chapter 5 of this title.

      (e) Nothing in this chapter shall be construed to:

      (1) Prohibit or apply to the testing of drivers regulated under 49 C.F.R. § 40.1 et seq and

49 C.F.R. part 382 if that testing is performed pursuant to a policy mandated by the federal

government; or

      (2) Prohibit an employer in the public utility or mass transportation industry from

requiring testing otherwise barred by this chapter if that testing is explicitly mandated by federal

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regulation or statute as a condition for the continued receipt of federal funds.

      (3) Prohibit an employer in the highway maintenance industry, which shall include the

construction, upkeep, maintenance and repair of the state's highways, roads and bridges including

the repaving or resurfacing of the same, from requiring testing otherwise barred by this chapter,

provided the testing is performed as regulated under 49 C.F.R. part 40.

     (4) Prohibit the state, municipalities within the state, any political subdivision of the state

or municipalities, fire districts, quasi-public agencies, or any other agency or entity using vehicles

funded with taxpayer dollars from requiring random drug and alcohol testing otherwise barred by

this chapter if such testing is required from employees who are operating state or municipally-

owned vehicles.

      (f) Notwithstanding the foregoing, this chapter shall not apply to members of the

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and its

signatory contractors jointly participating in the IMPACT National Substance Abuse Program for

purposes of pre-qualifying workers for employment on and ensuring the maintenance of

designated drug free work sites; provided, however, that:

      (1) Participation by each worker is voluntary; and

      (2) Workers who refuse to participate shall not be subjected to any adverse employment

action other than an inability to work on a designated drug free work site; and

      (3) The penalty for a first "positive" test shall not exceed a thirty (30) day suspension

from work on designated drug free work sites.

     28-6.5-2. Testing of prospective employees. -- (a) Except as provided in subsections (b)

and (c) of this section, an employer may require a job applicant to submit to testing of his or her

blood, urine or any other bodily fluid or tissue if:

      (1) The job applicant has been given an offer of employment conditioned on the

applicant's receiving a negative test result;

      (2) The applicant provides the test sample in private, outside the presence of any person;

and

      (3) Positive tests of urine, blood, or any other bodily fluid or tissue are confirmed by a

federal certified laboratory by means of gas chromatography/mass spectrometry or technology

recognized as being at least as scientifically accurate.

      (b) The pre-employment drug testing authorized by this section shall not extend to job

applicants for positions with any agency or political subdivision of the state or municipalities,

except for applicants seeking employment as a law enforcement or correctional officer,

firefighter, employees who are operators of any vehicle owned or leased by the state, any

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municipality of the state, any political subdivision of the state or municipalities, any fire district,

quasi-public agency or any other entity or agency using vehicles funded with taxpayer dollars, or

any other position where that testing is required by federal law or required for the continued

receipt of federal funds.

      (c) An employer shall not be required to comply with the conditions of testing under

subsection (a) of this section to the extent they are inconsistent with federal law.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - URINE AND BLOOD TESTS AS A

CONDITION OF EMPLOYMENT

***

     This act would permit drug and alcohol testing of employees of state or municipal

agencies who operate state or municipally-owned vehicles.

     This act would take effect upon passage.

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