2013 -- S 0843 SUBSTITUTE A AS AMENDED

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LC02170/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS - DRUG TESTING

     Introduced By: Senators Lombardo, Lombardi, and Conley

     Date Introduced: April 04, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-6.5-1 of the General Laws in Chapter 28-6.5 entitled "Urine and

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Blood Tests as a Condition of Employment" is hereby amended to read as follows:

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

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

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

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

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

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

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employee's job performance and specific contemporaneous documented observations, capable of

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being articulated, concerning the employee's appearance, behavior or speech that the employee's

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employee may be under the influence of a use of controlled substances substance, which may be

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is impairing his or her ability to perform his or her job;

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

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

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

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

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

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

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

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

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controlled substances despite treatment may be terminated;

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

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

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recognized as being at least as scientifically accurate;

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

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

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advises the employee;

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

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rebut or explain the results;

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

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requirements of this chapter; and

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

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

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

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

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

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

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

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

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

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damages;

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

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

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violation of this section.

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

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under chapter 5 of this title.

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

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

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

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federal government; or

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

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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.

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

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

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

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

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

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

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

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

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

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      (1) Participation by each worker is voluntary; and

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

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

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

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from work on designated drug free work sites.

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     SECTION 2. This act shall take effect upon passage.

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LC02170/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - DRUG TESTING

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     This act would expand the regulation of employer mandated drug testing to include the

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highway construction and repair industry.

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     This act would take effect upon passage.

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LC02170/SUB A

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