1.1                          A bill for an act 
  1.2             relating to employment; modifying drug and alcohol 
  1.3             testing provisions; regulating point of collection 
  1.4             testing; amending Minnesota Statutes 2000, sections 
  1.5             181.950, subdivisions 5, 8, by adding subdivisions; 
  1.6             181.951, subdivision 1; 181.952; 181.953, subdivisions 
  1.7             1, 3, 4, 5, 7, by adding a subdivision; 181.954, 
  1.8             subdivision 2; proposing coding for new law in 
  1.9             Minnesota Statutes, chapter 181. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11     Section 1.  Minnesota Statutes 2000, section 181.950, 
  1.12  subdivision 5, is amended to read: 
  1.13     Subd. 5.  [DRUG AND ALCOHOL TESTING.] "Drug and alcohol 
  1.14  testing," "drug or alcohol testing," and "drug or alcohol test" 
  1.15  mean analysis of a body component sample according to the 
  1.16  standards established under one of the programs listed in 
  1.17  section 181.953, subdivision 1, for the purpose of measuring the 
  1.18  presence or absence of drugs, alcohol, or their metabolites in 
  1.19  the sample tested. 
  1.20     Sec. 2.  Minnesota Statutes 2000, section 181.950, 
  1.21  subdivision 8, is amended to read: 
  1.22     Subd. 8.  [INITIAL SCREENING TEST.] "Initial screening 
  1.23  test" means a drug or alcohol test which is either: 
  1.24     (1) a test that uses a method of analysis under one of the 
  1.25  programs listed in section 181.953, subdivision 1; or 
  1.26     (2) a point of collection test as defined in subdivision 9a.
  1.27     Sec. 3.  Minnesota Statutes 2000, section 181.950, is 
  2.1   amended by adding a subdivision to read: 
  2.2      Subd. 9a.  [POINT OF COLLECTION TEST.] "Point of collection 
  2.3   test" means a drug test that:  
  2.4      (1) can be administered at the location of sample 
  2.5   collection and does not require the involvement of a laboratory; 
  2.6   and 
  2.7      (2) has been cleared by the United States Food and Drug 
  2.8   Administration for commercial marketing under section 510(k) of 
  2.9   the federal Food, Drug, and Cosmetic Act. 
  2.10     Sec. 4.  Minnesota Statutes 2000, section 181.950, is 
  2.11  amended by adding a subdivision to read: 
  2.12     Subd. 14.  [POCT ADMINISTRATOR.] "POCT administrator" means 
  2.13  a person or entity that collects a sample for a point of 
  2.14  collection test and performs a point of collection test on a 
  2.15  sample on behalf of an employer. 
  2.16     Sec. 5.  Minnesota Statutes 2000, section 181.951, 
  2.17  subdivision 1, is amended to read: 
  2.18     Subdivision 1.  [LIMITATIONS ON TESTING.] (a) An employer 
  2.19  may not request or require an employee or job applicant to 
  2.20  undergo drug and alcohol testing except as authorized in this 
  2.21  section.  
  2.22     (b) An employer may not request or require an employee or 
  2.23  job applicant to undergo drug or alcohol testing unless the 
  2.24  testing is done pursuant to a written drug and alcohol testing 
  2.25  policy that contains the minimum information required in section 
  2.26  181.952; and, except in the case of a point of collection test 
  2.27  conducted in compliance with section 181.9535, is conducted by a 
  2.28  testing laboratory which participates in one of the programs 
  2.29  listed in section 181.953, subdivision 1.  
  2.30     (c) An employer may not request or require an employee or 
  2.31  job applicant to undergo drug and alcohol testing on an 
  2.32  arbitrary and capricious basis. 
  2.33     Sec. 6.  Minnesota Statutes 2000, section 181.952, is 
  2.34  amended to read: 
  2.35     181.952 [POLICY CONTENTS; PRIOR WRITTEN NOTICE.] 
  2.36     Subdivision 1.  [CONTENTS OF THE POLICY.] An employer's 
  3.1   drug and alcohol testing policy must, at a minimum, set forth 
  3.2   the following information: 
  3.3      (1) the employees or job applicants subject to testing 
  3.4   under the policy; 
  3.5      (2) the circumstances under which drug or alcohol testing 
  3.6   may be requested or required; 
  3.7      (3) whether the employer uses point of collection testing; 
  3.8      (4) the right of an employee or job applicant to refuse to 
  3.9   undergo drug and alcohol testing and the consequences of 
  3.10  refusal; 
  3.11     (4) (5) any disciplinary or other adverse personnel action 
  3.12  that may be taken based on a confirmatory test verifying a 
  3.13  positive test result on an initial screening test; 
  3.14     (5) (6) the right of an employee or job applicant to 
  3.15  explain a positive test result on a confirmatory test or request 
  3.16  and pay for a confirmatory retest; and 
  3.17     (6) (7) any other appeal procedures available. 
  3.18     Subd. 2.  [NOTICE.] An employer shall provide written 
  3.19  notice of its drug and alcohol testing policy to all affected 
  3.20  employees upon adoption of the policy or modification of the 
  3.21  policy, to a previously nonaffected employee upon transfer to an 
  3.22  affected position under the policy, and to a job applicant upon 
  3.23  hire and before any testing of the applicant if the job offer is 
  3.24  made contingent on the applicant passing drug and alcohol 
  3.25  testing.  An employer shall also post notice in an appropriate 
  3.26  and conspicuous location on the employer's premises that the 
  3.27  employer has adopted a drug and alcohol testing policy and that 
  3.28  copies of the policy are available for inspection during regular 
  3.29  business hours by its employees or job applicants in the 
  3.30  employer's personnel office or other suitable locations. 
  3.31     Sec. 7.  Minnesota Statutes 2000, section 181.953, 
  3.32  subdivision 1, is amended to read: 
  3.33     Subdivision 1.  [USE OF LICENSED, ACCREDITED, OR CERTIFIED 
  3.34  LABORATORY REQUIRED.] (a) Except in the case of a point of 
  3.35  collection test in accordance with section 181.9535, an employer 
  3.36  who requests or requires an employee or job applicant to undergo 
  4.1   drug or alcohol testing shall use the services of a testing 
  4.2   laboratory that meets one of the following criteria for drug 
  4.3   testing: 
  4.4      (1) is certified by the National Institute on Drug Abuse 
  4.5   United States Department of Health and Human Services Substance 
  4.6   Abuse and Mental Health Services Administration as meeting the 
  4.7   mandatory guidelines published at 54 Federal Register 11970 to 
  4.8   11989, April 11, 1988; 
  4.9      (2) is accredited by the College of American Pathologists, 
  4.10  325 Waukegan Road, Northfield, Illinois, 60093-2750, under the 
  4.11  forensic urine drug testing laboratory program; or 
  4.12     (3) is licensed to test for drugs by the state of New York, 
  4.13  department of health, under Public Health Law, article 5, title 
  4.14  V, and rules adopted under that law. 
  4.15     (b) For alcohol testing, the laboratory must either be: 
  4.16     (1) licensed to test for drugs and alcohol by the state of 
  4.17  New York, department of health, under Public Health Law, article 
  4.18  5, title V, and the rules adopted under that law; or 
  4.19     (2) accredited by the College of American Pathologists, 325 
  4.20  Waukegan Road, Northfield, Illinois, 60093-2750, in the 
  4.21  laboratory accreditation program. 
  4.22     Sec. 8.  Minnesota Statutes 2000, section 181.953, 
  4.23  subdivision 3, is amended to read: 
  4.24     Subd. 3.  [LABORATORY TESTING, REPORTING, AND SAMPLE 
  4.25  RETENTION REQUIREMENTS.] A testing laboratory that is not 
  4.26  certified by the National Institute on Drug Abuse United States 
  4.27  Department of Health and Human Services Substance Abuse and 
  4.28  Mental Health Services Administration according to subdivision 1 
  4.29  shall follow the chain-of-custody procedures prescribed for 
  4.30  employers in subdivision 5.  A testing laboratory shall conduct 
  4.31  a confirmatory test on all samples that produced a positive test 
  4.32  result on an initial screening test conducted by the 
  4.33  laboratory.  A laboratory shall disclose to the employer a 
  4.34  written test result report for each sample tested within three 
  4.35  working days after a negative test result on an initial 
  4.36  screening test or, when the initial screening test produced a 
  5.1   positive test result, within three working days after a 
  5.2   confirmatory test.  A test report must indicate the drugs, 
  5.3   alcohol, or drug or alcohol metabolites tested for and whether 
  5.4   the test produced negative or positive test results.  A 
  5.5   laboratory shall retain and properly store for at least six 
  5.6   months all samples that produced a positive test result.  
  5.7      Sec. 9.  Minnesota Statutes 2000, section 181.953, 
  5.8   subdivision 4, is amended to read: 
  5.9      Subd. 4.  [PROHIBITIONS ON EMPLOYERS.] An employer may not 
  5.10  conduct drug or alcohol testing of its own employees and job 
  5.11  applicants using a testing laboratory owned and operated by the 
  5.12  employer; except that, one agency of the state may test the 
  5.13  employees of another agency of the state.  Except as provided in 
  5.14  subdivision 9, an employer may not request or require an 
  5.15  employee or job applicant to contribute to, or pay the cost of, 
  5.16  drug or alcohol testing under sections 181.950 to 
  5.17  181.954.  Nothing in this subdivision prevents an employer from 
  5.18  using a point of collection test that complies with section 
  5.19  181.9535. 
  5.20     Sec. 10.  Minnesota Statutes 2000, section 181.953, 
  5.21  subdivision 5, is amended to read: 
  5.22     Subd. 5.  [EMPLOYER CHAIN-OF-CUSTODY PROCEDURES.] An 
  5.23  employer shall establish its own reliable chain-of-custody 
  5.24  procedures to ensure proper record keeping, handling, labeling, 
  5.25  and identification of the samples to be tested.  The procedures 
  5.26  must require the following: 
  5.27     (1) possession of a sample must be traceable to the 
  5.28  employee from whom the sample is collected, from the time the 
  5.29  sample is collected through the time the sample is delivered to 
  5.30  the laboratory or, in the case of a point of collection test 
  5.31  that produces a negative result, otherwise disposed of by the 
  5.32  person conducting the test; 
  5.33     (2) the sample must always be in the possession of, must 
  5.34  always be in view of, or must be placed in a secured area by a 
  5.35  person authorized to handle the sample; 
  5.36     (3) a sample must be accompanied by a written 
  6.1   chain-of-custody record; and 
  6.2      (4) individuals relinquishing or accepting possession of 
  6.3   the sample must record the time the possession of the sample was 
  6.4   transferred and must sign and date the chain-of-custody record 
  6.5   at the time of transfer.  
  6.6      Sec. 11.  Minnesota Statutes 2000, section 181.953, is 
  6.7   amended by adding a subdivision to read: 
  6.8      Subd. 5a.  [ADULTERATION PROHIBITED.] No party having 
  6.9   control over a sample collected from an employee shall 
  6.10  adulterate, tamper with, or change the chemical composition of a 
  6.11  sample with the intent of affecting the test results.  This 
  6.12  subdivision does not prohibit any action that is taken in 
  6.13  accordance with the manufacturer instructions of a point of 
  6.14  collection test, including an action taken to test for the 
  6.15  adulteration, dilution, or substitution of the sample, or any 
  6.16  action that is performed by a laboratory in the normal course of 
  6.17  its testing procedures. 
  6.18     Sec. 12.  Minnesota Statutes 2000, section 181.953, 
  6.19  subdivision 7, is amended to read: 
  6.20     Subd. 7.  [NOTICE OF TEST RESULTS.] Within three working 
  6.21  days after receipt of a test result report from the a testing 
  6.22  laboratory or a POCT administrator, an employer shall inform in 
  6.23  writing an employee or job applicant who has undergone drug or 
  6.24  alcohol testing of:  (1) a negative test result on a point of 
  6.25  collection test or an initial screening test or of; (2) a 
  6.26  negative or positive test result on a confirmatory test; 
  6.27  and (2) (3) the right provided in subdivision 8.  In the case of 
  6.28  a positive test result on a confirmatory test, the employer 
  6.29  shall also, at the time of this notice, inform the employee or 
  6.30  job applicant in writing of the rights provided in subdivisions 
  6.31  6, paragraph (b), 9, and either subdivision 10 or 11, whichever 
  6.32  applies. 
  6.33     Sec. 13.  [181.9535] [POINT OF COLLECTION TESTING.] 
  6.34     Subdivision 1.  [SCOPE.] An employer who uses point of 
  6.35  collection testing must comply with the requirements of this 
  6.36  section.  An employer may not discharge, discipline, 
  7.1   discriminate against, or request or require rehabilitation of an 
  7.2   employee on the basis of a point of collection test. 
  7.3      Subd. 2.  [EMPLOYEES COVERED BY COLLECTIVE BARGAINING 
  7.4   AGREEMENT.] Point of collection testing may not be used to test 
  7.5   an employee who is covered by a collective bargaining agreement, 
  7.6   unless the collective bargaining agreement expressly authorizes 
  7.7   the use of point of collection testing. 
  7.8      Subd. 3.  [PERSON ADMINISTERING TEST.] (a) An employer may 
  7.9   use a point of collection test only by having the test performed 
  7.10  by a POCT administrator authorized by the employer to perform 
  7.11  the test, provided that any person or entity performing a test 
  7.12  on an employer's behalf must comply with the requirements of 
  7.13  this subdivision.  A point of collection test may be 
  7.14  administered only by an individual who: 
  7.15     (1) has been trained by the manufacturer of the test, or a 
  7.16  trainer authorized by the manufacturer, on the proper procedure 
  7.17  for administering the test and accurate evaluation of test 
  7.18  results, including instruction on the contents of the 
  7.19  manufacturer's package insert as submitted and approved by the 
  7.20  Food and Drug Administration, completion of the manufacturer's 
  7.21  self-test and written examination, and performance of ten point 
  7.22  of collection tests using both negative and positive 
  7.23  drug-fortified specimens and interpreting the results; and 
  7.24     (2) has been certified in writing by the manufacturer or 
  7.25  the trainer authorized by the manufacturer as competent to 
  7.26  administer and evaluate the point of collection test. 
  7.27     (b) The person performing the test shall post, in a 
  7.28  conspicuous location near the location of sample collection, the 
  7.29  certification documentation provided under paragraph (a), clause 
  7.30  (2). 
  7.31     Subd. 4.  [TEST TO BE CONDUCTED ACCORDING TO MANUFACTURER'S 
  7.32  INSTRUCTIONS.] A point of collection test must be conducted 
  7.33  according to the instructions provided by the manufacturer of 
  7.34  the testing product or products being used.  If a manufacturer 
  7.35  recommends particular procedures to maximize the reliability of 
  7.36  the test, those practices must be followed by the POCT 
  8.1   administrator. 
  8.2      Subd. 5.  [COLLECTION SITE.] The POCT administrator 
  8.3   performing a point of collection test must ensure that the 
  8.4   employee or job applicant providing the sample has a safe, 
  8.5   private, and clean site for collection of the sample.  The 
  8.6   person administering the test may not directly observe the 
  8.7   employee or job applicant while the employee or applicant is 
  8.8   providing the sample. 
  8.9      Subd. 6.  [EMPLOYER MAY NOT CONDUCT SAMPLE COLLECTION.] All 
  8.10  samples used in point of collection testing must be collected by 
  8.11  the POCT administrator authorized by the employer to conduct the 
  8.12  test.  No employer, and no employee of an employer, may 
  8.13  participate in the collection of samples for point of collection 
  8.14  testing conducted on that employer's behalf in any manner that 
  8.15  allows the employer or its employees to observe sample 
  8.16  collection or to have possession of or control over a sample at 
  8.17  any time.  No employer may use the services of a POCT 
  8.18  administrator for point of collection testing if the POCT 
  8.19  administrator is employed by the employer, or is an entity or an 
  8.20  employee of an entity owned by the employer. 
  8.21     Subd. 7.  [RECORDING RESULTS.] If the point of collection 
  8.22  test does not create a permanent record documenting the result, 
  8.23  then the person administering the test must immediately document 
  8.24  the result of the test by creating a written document describing 
  8.25  the test result.  All written records of point of collection 
  8.26  testing must be retained by the employer for at least three 
  8.27  years and a copy of the record may be made available to the 
  8.28  employee if copying is practical. 
  8.29     Subd. 8.  [HANDLING OF SAMPLE.] The POCT administrator must 
  8.30  employ chain-of-custody procedures in compliance with section 
  8.31  181.953, subdivision 5, in connection with any point of 
  8.32  collection testing.  If the result of a point of collection test 
  8.33  is negative, the person administering the test shall immediately 
  8.34  dispose of the sample.  If the result of a point of collection 
  8.35  test is not negative, the original specimen shall be transported 
  8.36  to a testing laboratory licensed under section 181.953, 
  9.1   subdivision 1, paragraph (a).  Approved chain-of-custody 
  9.2   procedures must be used when transporting a specimen to the 
  9.3   laboratory. 
  9.4      Sec. 14.  Minnesota Statutes 2000, section 181.954, 
  9.5   subdivision 2, is amended to read: 
  9.6      Subd. 2.  [CONFIDENTIALITY LIMITATIONS.] Test result 
  9.7   reports and other information acquired in the drug or alcohol 
  9.8   testing process are, with respect to private sector employees 
  9.9   and job applicants, private and confidential information, and, 
  9.10  with respect to public sector employees and job applicants, 
  9.11  private data on individuals as that phrase is defined in chapter 
  9.12  13, and may not be disclosed by an employer, POCT administrator, 
  9.13  or laboratory to another employer or to a third-party 
  9.14  individual, governmental agency, or private organization without 
  9.15  the written consent of the employee or job applicant tested.