House Bill No. 15

Introduced By kitzenberg

A Bill for an Act entitled: "An Act requiring employees of state correctional facilities to be tested for drugs; and amending section

39-2-304, MCA."

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1. Urine drug testing of state correctional facility employees. (1) A facility that is operated by the state or by a private party under a contract with the state and in which persons are incarcerated as a result of the sentence following conviction of a crime or as a result of the disposition following a youth court proceeding shall require each new employee and shall annually require each current employee to take and pass a urine test for drugs.

(2) The test required by subsection (1) may be administered by the incarceration facility or by an entity of its choice. The test administrator shall adopt and comply with the testing procedures provided in 49 CFR, part 40.

(3) The test administrator shall provide a copy of the procedures required by subsection (2) and of the test results to a person tested. The person tested may, at the expense of the incarceration facility, obtain a confirmatory test by an entity selected by the person tested. The person tested must be given the opportunity to rebut or explain the results of either test or both tests.

(4) The test results may not be used in a criminal prosecution against the person tested. The test results may not be used as the basis for an adverse employment action against the person tested if that person presents a reasonable explanation or medical opinion indicating that the test results were not caused by the use of one or more illegal drugs or by the abuse of one or more legal drugs.

Section 2. Section 39-2-304, MCA, is amended to read:

"39-2-304. Lie detector tests prohibited -- regulation of blood and urine testing. (1) A person, firm, corporation, or other business entity or its representative may not require:

(a) as a condition for employment or continuation of employment, a person to take a polygraph test or any form of a mechanical lie detector test;

(b) as a condition for employment, a person to submit to a blood or urine test, except for employment in:

(i) hazardous work environments;

(ii) jobs the primary responsibility of which is security, public safety, or fiduciary responsibility; or

(iii) jobs involving the intrastate commercial transportation of persons or commodities by a commercial motor carrier or an employee subject to driver qualification requirements; and

(i) the employer has reason to believe that the employee's faculties are impaired on the job as a result of alcohol consumption or illegal drug use;

(ii) the employer has reason to believe that an employee may have contributed to a work-related accident that causes death or personal injury or property damage in excess of $1,500;

(iii) a test is required under [section 1]; or

~~(iii)~~ (iv) drug testing is being conducted at an employee's regular biennial physical for employment in jobs involving the intrastate commercial motor carrier transportation of persons or commodities.

(2) Prior to the administration of a drug or alcohol test, the person, firm, corporation, or other business entity or its representative shall adopt the written testing procedure that is provided in 49 CFR, part 40, and make it available to all persons subject to testing.

(3) The person, firm, corporation, or other business entity or its representative shall provide a copy of drug or alcohol test results to the person tested and provide the person with the opportunity, at the expense of the person requiring the test, to obtain a confirmatory test of the blood or urine by an independent laboratory selected by the person tested. The person tested must be given the opportunity to rebut or explain the results of either test or both tests. In the case of an accident referred to in subsection (1)(c)(ii), the tests may not be delayed, but the person, firm, corporation, or other business entity or its representative shall, as soon as possible, make a written finding as to whether the act or failure to act is believed to be a direct or proximate cause of the accident and shall provide the tested employee with a copy of the finding. The written record of a blood or urine test of an employee who is required to submit to testing pursuant to subsection (1)(c)(ii) and whose acts or failure to act is subsequently found not to be the direct or proximate cause of a work-related accident must be removed from the employee's work record and be destroyed.

(4) Adverse action may not be taken against a person tested under subsections (1)(b), (1)(c), (2), and (3) if the person tested presents a reasonable explanation or medical opinion indicating that the results of the test were not caused by alcohol consumption or illegal drug use.

(5) A person who violates this section is guilty of a misdemeanor.

(6) As used in this section:

(a) "commercial motor carrier" has the meaning provided in 61-1-320 and in 69-12-101; and

(b) "intrastate" means commerce or trade that is begun, carried on, and completed wholly in this state."

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