House Bill No. 345
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act adopting the private workforce drug and alcohol testing act; establishing criteria for drug and alcohol testing of employees and prospective employees; limiting the liability of employers using qualified drug and alcohol testing programs; providing for confidentiality of test results except in certain circumstances; and amending section
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Short title. [Sections 1 through 5] may be cited as the "Private Workforce Drug and Alcohol Testing Act".
NEW SECTION. Section 2. Definitions. As used in [sections 1 through 5], the following definitions apply:
(1) "Controlled substance" means a dangerous drug, as defined as 50-32-101, and listed in Schedules I or II in 50-32-222 and 50-32-224, except a drug used pursuant to a valid prescription or as authorized by law.
(2) "Employee" means an individual engaged in the performance of work for a private employer and does not include an independent contractor.
(3) "Employer" means a person or entity in the private sector that has one or more employees and that is located in or doing business in Montana.
(4) "Medical review officer" means a state-licensed physician trained in the field of substance abuse.
(5) "Prospective employee" means an individual who has made a written or oral application to an employer to become an employee.
(6) "Qualified testing program" means a program to test for the presence of controlled substances and alcohol that meets the criteria set forth in [sections 4 and 5].
(7) "Sample" means a urine or blood specimen to determine the presence of a controlled substance or a breath alcohol test to determine the presence of alcohol.
NEW SECTION. Section 3. Limitations on employer liability. (1) An employer is not liable for monetary damages arising out of a drug or alcohol test that the employer requires an employee or prospective employee to take if the test is administered pursuant to a qualified testing program that is adopted and implemented by an employer to test employees for the presence of controlled substances or alcohol, unless:
(a) the employer took disciplinary action against the employee based on a false test result and the employer's reliance on the test result was not reasonable or was in bad faith. There is a rebuttable presumption that an employer's reliance on a test result is reasonable if the employer complies with the provisions of [sections 4 and 5] and rules adopted pursuant to [sections 4 and 5].
(b) the employer committed defamation of character, libel, slander, or damage to reputation, as established by statute or common law, by knowingly disclosing false test results with malice.
(2) An employer is not liable for monetary damages arising out of a drug or alcohol test that fails to detect a specific controlled substance or other substance, disease, infectious agent, virus, or physical abnormality, problem, or defect of any kind.
NEW SECTION. Section 4. Qualified testing program. A qualified testing program must comply with the following criteria:
(1) Testing must be conducted according to the terms of written policies and procedures that must be adopted by the employer and must be available for review by all employees and prospective employees 60 days before implementation. At a minimum, the policies and procedures must require:
(a) a description of the applicable legal sanctions under federal, state, and local law for the unlawful manufacture, distribution, possession, or use of a controlled substance;
(b) the employer's proposal for educating or providing information to employees on the health risks associated with the use of controlled substances and alcohol;
(c) the employer's standards of conduct that regulate the use of controlled substances and alcohol by employees;
(d) a description of available employee assistance programs, including drug and alcohol counseling, treatment, or rehabilitation programs that are available to employees;
(e) a description of the sanctions that the employer may impose on an employee if the employee is found to have violated the standards of conduct referred to in subsection (1)(c) or if the employee is found to test positive for the presence of a controlled substance or alcohol;
(f) a statement that employees may be tested, including a discussion of the circumstances that may trigger an immediate test;
(g) a list of controlled substances for which the employer intends to test;
(h) a description of the employer's hiring policy with respect to prospective employees who test positive;
(i) a detailed description of the procedures that will be followed to conduct the testing program, including the resolution of a dispute concerning test results;
(j) a provision that all information, interviews, reports, statements, memoranda, and test results are confidential communications that may not be disclosed to anyone except:
(i) the tested employee;
(ii) employees or agents of the employer who are specifically authorized by the tested employee to resolve the employee's test results; or
(iii) in a proceeding related to a legal action arising out of the employer's implementation of [sections 1 through 5] or in response to inquiries relating to a workplace accident involving death, physical injury, or property damage in excess of $1,500, when there is reason to believe that the tested employee may have caused or contributed to the accident; and
(k) a provision that information obtained through testing that is unrelated to the use of a controlled substance or alcohol must be held in strict confidentiality by the medical review officer and may not be released to the employer.
(2) In addition to imposing appropriate sanctions on an employee for violation of the employer's standards of conduct, an employer may require an employee who tests positive on a test for controlled substances or alcohol to participate in an appropriate drug or alcohol counseling, treatment, or rehabilitation program as a condition of continued employment. An employer may require the employee to submit to periodic retesting as a condition of the counseling, treatment, or rehabilitation program.
(3) Testing must be at the employer's expense, and all employees must be compensated at the employee's regular rate, including benefits, for time attributable to the testing program.
(4) The collection of samples must be performed in a manner designed to protect the privacy of the employee, using, when practicable, screens or stalls, except that if an employer has reason to believe an employee may adulterate or substitute the required sample, the employer may require that the sample be provided under the direct supervision of testing personnel.
(5) Samples must be handled under strict forensic chain-of-custody procedures. The procedures must require that a sample be collected, stored, and transported in a manner that documents and preserves the identity of each sample and prevents the adulteration, contamination, or erroneous identification of test results.
(6) Testing of samples must be performed according to scientifically accepted analytical procedures by a qualified laboratory certified by the national institute on drug abuse. Confirmatory tests of an initial screening test must be conducted by the same laboratory using gas chromatography-mass spectrometry techniques or techniques that are of comparable or superior quality with respect to validation.
(7) Before an employer may take any action based on a positive test result, the employer shall have the results reviewed and certified by a medical review officer who is trained in the field of substance abuse. An employee or prospective employee must be given the opportunity to provide notification to the medical review officer of any medical information that is relevant to interpreting test results, including information concerning currently or recently used prescription or nonprescription drugs.
NEW SECTION. Section 5. Confidentiality of results. (1) Except as provided in subsection (2) and except for information that is required by law to be reported to a state or federal licensing authority, all information, interviews, reports, statements, memoranda, or test results received by an employer through a qualified testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding.
(2) Material that is confidential under subsection (1) may be used in a proceeding related to:
(a) legal action arising out of an employer's implementation of [sections 1 through 5]; or
(b) inquiries relating to a workplace accident involving death, physical injury, or property damage in excess of $1,500 when there is reason to believe that the tested employee may have caused or contributed to the accident.
Section 6. 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 ; as a condition for employment or continuation of employment. (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 (c) as a condition for continuation of employment, an employee to submit to a blood or urine test, except when: (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; or (iii) 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."
NEW SECTION. Section 7. Codification instruction. [Sections 1 through 5] are intended to be codified as an integral part of Title 39, chapter 2, part 2, and the provisions of Title 39, chapter 2, part 2, apply to [sections 1 through 5].