GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	1 

SENATE BILL 23*

Short Title:  Drug Testing Regulation.	(Public)
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Sponsors:  Senators Block; and Ward.─────────────────────────────────────── 
Referred to:  Judiciary III.
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January 18, 1989

A BILL TO BE ENTITLED
AN ACT TO REGULATE WORKPLACE DRUG TESTING.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 95 of the General Statutes is amended by adding a new Article 19 to read:
“Article 19.
"Workplace Drug Testing Regulation Act.
"§ 95-225.  Definitions.
As used in this Article, unless the context clearly requires otherwise, the following terms have the meanings specified:
(1)	‘Drug' means a controlled substance as defined in G.S. 90-87(5) or a metabolite thereof.
(2)	‘Employer' means a person doing business in the State who has one or more employees within the State.
(3)	‘Employee' means an individual currently performing services, within the State for compensation for an employer.
(4)	‘Random test' means a drug test of an employee selected by a method that provides an equal probability that any employee from a group of employees will be selected, and does not give an employer discretion to waive the selection of any employee selected by the selection method.
(5)	‘Reasonable suspicion drug testing.'  Drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy.  This belief shall be based upon specific objective and articulable facts and reasonable inferences.  These shall be based upon:
a.	Direct observation of drug use and/or the physical symptoms or manifestations of being under the influence of a drug; or,
b.	Abnormal conduct or erratic behavior while at work, a pattern of absenteeism, tardiness, or deterioration in work performance; or,
c.	A report of drug use provided by reliable and credible sources and which has been independently corroborated; or,
d.	Evidence that an individual has tampered with a drug test, during his/her employ with the current employer; or,
e.	Information from a reliable and credible source, that an employee has caused, or contributed to an accident at work while under the influence of drugs; or,
f.	Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs while working or while on the employer's premises or operating the employer's vehicle, machinery, or equipment.
(6)	‘Employee assistance program' means a program provided by an employer offering, as a minimum, assessment and referral services to employees.
(7)	‘Job Applicant' means a person who has completed a written job application provided by the employer for employment within the State.
(8)	‘High Risk or Safety Sensitive Position' means a position requiring the operation of vehicles, machinery, equipment or the handling of hazardous materials, the mishandling of which may place fellow employees or the general public at risk of serious injury, or the nature of which would create a security risk in the workplace.
"§ 95-226.  Authorized drug testing.
(a)	No Testing Except As Authorized.  An employer may not request or require an employee or a job applicant to undergo drug testing except as authorized in this Article.
(b)	Reasonable Suspicion Drug Testing.  An employer may request or require any employee to submit to reasonable suspicion drug testing.
(c)	Random Testing.  An employer may require a random test of an employee if the employee serves in a high risk or safety sensitive position.
(d)	Applicant Testing.  An employer may require a job applicant to submit to a drug test only if:
(1)	The job applicant is informed in writing at the time of application of the employer's intent to conduct a drug test; and
(2)	The test is administered in accordance with the provisions of G.S. 95-227.  An employer is not required to provide an employee assistance program to any job applicant with a confirmed positive drug test result.  A confirmed positive drug test result may be used by an employer as a basis for denying or limiting employment of a job applicant.
(e)	Treatment Program Testing.  An employer may require drug testing of any employee referred by the employer's employee assistance program to a drug abuse counseling, rehabilitation, or treatment program.  An employee may be required to undergo drug testing during the drug abuse counseling, rehabilitation, or treatment program, and for a follow-up period of up to 12 months following successful completion of the program.  An employee shall not be discharged based upon a confirmed positive treatment test during the first 30 days after the employee enters an employee assistance program.
"§ 95-227.  Procedural requirements for the administration of drug tests.
(a)	Limitations.  An employer who requests or requires a job applicant or employee to submit to a drug test shall comply with all of the following procedural requirements.  An employer may take no adverse action against any employee or job applicant based on the results of a drug test unless the employer has complied with all of the following procedural requirements.
(b)	Written Policy.  The employer shall provide all persons tested with a written policy that identifies:
(1)	The circumstances under which the employee may be required to submit to a test;
(2)	The test procedures;
(3)	The classes of drugs that may be tested for;
(4)	The consequences of a confirmed positive test result;
(5)	The consequences of a refusal to take a drug test;
(6)	The right to a second test at the employee's expense of a positive drug test result, to be taken from the original sample;
(7)	The right of an employee or job applicant to explain a positive test result; and,
(8)	The right of an employee to be notified in writing of the basis for any drug test based on reasonable suspicion.
(c)	Collection of Sample.  The collection of samples shall be performed under reasonable and sanitary conditions.  Individual dignity shall be preserved to the extent practicable.  Samples shall be collected in a manner reasonably calculated to prevent substitution of samples and interference with the collection or testing of samples.  No employer or his representative may directly observe an employee or job applicant in the process of producing a urine sample unless there is reason to believe there has been tampering with or substitution of samples.
(d)	Approved Labs.  The employer shall use only laboratories approved and certified by the North Carolina Department of Human Resources, or laboratories that have demonstrated satisfactory performance in the proficiency testing programs of the National Institute on Drug Abuse, the College of American Pathology, or the American Association for Clinical Chemistry, to conduct employee and job applicant drug testing.  An approved lab shall confirm any sample that tests positive by a second test of the sample utilizing gas chromatography with mass spectrometry or an equivalent scientifically accepted method.
(e)	Split Samples.  A portion of every sample that produces a confirmed positive test result shall be preserved by the laboratory that conducts the confirmatory test for a period of at least 90 days from the time the results of the confirmed positive test are mailed or otherwise delivered to the employer.
(f)	Test Results.  The employer shall provide each employee a copy of his test result, within five work days of employer notice of the test result, regardless of whether the test result is positive or negative.  Upon request, the employer shall provide each job applicant a copy, within five working days, of any positive test result.
(g)	Chain of Custody.  The employer or his agent shall establish procedures regarding chain of custody for sample collection and testing to ensure proper record keeping, handling, labeling, and identification of the test samples.
(h)	Opportunity to Explain Positive Test.  The employer shall provide the employee or job applicant tested the opportunity to rebut verbally or explain in writing a confirmed positive drug test result.
(i)	Opportunity for Retest.  An employee may request a retest of the original sample at the employee's own expense after notice of a positive test result.  Within five working days after notice of the test result, the employee shall notify the employer in writing of the employee's intention to obtain a retest.  Within five working days after receipt of the notice, the employer shall notify the original testing laboratory that the employee has requested the laboratory to conduct the retest or to transfer the sample to another laboratory to conduct the retest.  The retest must use the same drug threshold detection levels as used in the original test.  If the retest does not confirm the original positive test result, no adverse personnel action based on the original test may be taken against the employee.
(j)	Confidentiality.  An employer or laboratory shall not release to any person any information related to drug test results, except the following:
(1)	The employee;
(2)	The job applicant;
(3)	Employer's medical staff;
(4)	Direct supervisory personnel;
(5)	Other personnel as designated by the employer on a need to know basis;
(6)	Any person or job applicant has expressly in writing granted permission for the employer or laboratory to release information to; or,
(7)	Employee assistance program personnel designated by the employer on a need to know basis.
The employer or laboratory must gain employee permission for each release.
(k)	Employee Assistance Program.  The employer shall provide an employee assistance program for any permanent employees upon his first confirmed positive drug test.  The employee assistance program provides the employee with, or refers the employee to, an appropriate drug abuse counseling, rehabilitation or treatment program at the employee's own expense or as part of an employee benefit plan.  
Employee assistance programs under this act shall be registered with the North Carolina Department of Labor and shall abide by the guidelines established by the Department of Labor.
(l)	Disciplinary Action.  The employee's counseling, rehabilitation or treatment shall be paid for by the employer's health benefit plan or at the employee's expense if no such plan exists.  No employee may be discharged based upon a confirmed positive drug test unless:
(1)	The employee has previously participated in an employee assistance program for a drug abuse problem, while employed by his current employer; or,
(2)	The employee has refused to participate in the employer's employee assistance program, or any drug abuse counseling, rehabilitation or treatment program he has been referred to by the employee assistance program; or,
(3)	The employee has failed to successfully complete any employee assistance program, or any drug abuse counseling, rehabilitation or treatment program he has been referred to by the employee assistance program.  For purposes of this section, ‘failed to successfully complete' means withdrawal from the program before its completion, or a confirmed positive drug test result after completion of the program, as provided for in G.S. 95-226(e).
An employee may be:  
(1)	Suspended up to three days with or without pay, according to the employer's health leave policy, until he enters an employee assistance program, or,
(2)	Transferred or reassigned for the time necessary to complete the drug abuse counseling, rehabilitation, or treatment program designated by the employee assistance program; or,
(3)	Suspended without pay in accordance with the employer's health leave policy for a period of up to 30 days, when recommended by the employee assistance program for the purpose of drug treatment.
(m)	Time Limits on Drug Test Records.  The employer shall remove any reference to the results of a drug test and subsequent treatment from the personnel records of an employee who received a confirmed positive drug test result if, three years after the successful completion of an employee assistance program, the employee shows no evidence of illegal drug use.  This section does not apply to employee medical records.
"§ 95-228.  Employer drug test results not to be used in criminal action.
No drug test results from an employer drug testing program or the employee's retest may be used as evidence in a criminal action against the employee, job applicant, or employer.  However, a test report accompanied by an affidavit by the analyst or other designated certifying officer of the approved laboratory conducting the test, sworn to and properly executed before an official authorized to administer oaths, shall be admissible without further authentication as prima facie evidence in any hearing before the Department of Labor, Employment Security Commission, or other administrative agencies of the State concerned with employer-employee relations.  The Department of Human Resources shall develop a form for use by approved laboratories in making this affidavit.
If either employer or employee desires that the analyst, or other representative of the approved lab who conducted the test, personally testify at the hearing, he may subpoena and examine that person as though he were an adverse witness.
"§ 95-229.  No duty to test.
Nothing in this Article shall be construed to place a duty on employers to conduct drug testing of their employees or job applicants.
"§ 95-230.  Administrative Relief.
(a)	The Commissioner of Labor is authorized to investigate complaints from employers, employees, or job applicants regarding compliance with this Article.  The Commissioner or his representative shall have the power to enter any place of employment and gather such facts as are essential to determine whether or not a violation of this Article has occurred.
(b)	The Commissioner or his representative shall have the power to hold hearings, administer oaths, examine witnesses, issue subpoenas, compel the attendance of witnesses and the production of papers, books, records, physical evidence and documents, and take depositions and affidavits in any proceeding hereunder.
(c)	Subject to the requirements of Chapter 150B, the Commissioner is authorized to adopt such rules as are necessary for the purpose of carrying out the provisions of this Article.
(d)	The Commissioner may order an employer, laboratory or medical facility found to be in violation of this act to provide appropriate relief to the affected employee or employees.  Appropriate relief may include back pay, reinstatement to the same or an equivalent job, reinstatement of full employee benefits and seniority rights, and deletion of references from files.
(e)	Complaints regarding compliance with this Article must be filed within one year following notification to the employee regarding the results of the drug test or within one year of the occurrence of the violation, whichever is later.
"§ 95-231.  Remedies.
An employee, job applicant, or the Commissioner of Labor on behalf of such employee or job applicant alleging a violation of this act by an employer, laboratory or other medical facility may bring an action for injunctive relief or damages or both.  Relief may include:
(1)	An injunction to restrain the continued violation of this act;
(2)	Reinstatement of the employee to the same position held before the unlawful drug testing, disciplinary action or discharge, or to an equivalent position;
(3)	Reinstatement of full employee benefits and seniority rights;
(4)	Actual  damages, including reasonable attorney's fees.
"§ 95-232.  Applicability.
The provisions of this Article shall apply only to cases of employees working within the State and job applicants making application within the State."
Sec. 2.  This act shall become effective October 1, 1989.