97-S 0704A
Approved Jul. 3, 1997


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 such test shall be 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 on specific contemporaneous observations, capable of being articulated, concerning the employee's appearance, behavior or speech that the employee's use of controlled substances is impairing his or her ability to perform his or her job; and

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

(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 EPA 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; {ADDprovided, however, that additional testing may be required by the employer in accordance with said referral, and an employee whose testing indicates any continued use of controlled substances despite treatment may be terminated; ADD}and

(4) Positive tests {ADDof urine, blood or any other bodily fluid or tissue are confirmed by a federally certified laboratoryADD} by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate; and

(5) The employer provides 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; and

(6) The employer provides the employee with a reasonable opportunity to rebut or explain the results; and

(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 such a test, or causes, directly or indirectly, any employee to take such a 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 (1) 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 prohibit {ADDor apply toADD} the testing of drivers regulated under 49 C.F.R. section 40.1 et seq. and 49 C.F.R. {DELsection 391.81DEL} {ADDPart 382ADD} if such testing is {ADDperformed pursuant to a policyADD} mandated by the federal government, nor to prohibit an employer in the public utility or mass transportation industry from requiring testing otherwise barred by this chapter if such testing is explicitly mandated by federal regulation or statute as a condition for the continued receipt of federal funds{DEL; provided, however, that the testing authorized herein shall comply with any and all other provisions of this chapter that are not clearly inconsistent with the applicable federal regulations or statutes.DEL}

28-6.5-2. {DELUrine and blood testing of prospective employees.DEL} --{ADDTesting of prospective employees. --ADD} (a) Except as provided in subsections (b) and (c), an employer may require a job applicant to submit to{DEL blood or urineDEL} testing {ADDof his or her blood, urine or any other bodily fluid or tissueADD} 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 {ADDof urine, blood, or any other bodily fluid or tissueADD} are confirmed {ADDby a federal certified laboratoryADD} 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, or any other position where such 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) to the extent they are inconsistent with federal law.

SECTION 2. This act shall take effect upon passage.

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