House Bill No. 345
Introduced By masolo
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
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Short title. [Sections 1 through
5 8 7] may be cited as the "Private Workforce
"WORKFORCE Drug and Alcohol Testing Act".
NEW SECTION. Section 2. Definitions. As used in [sections 1 through
5 8 7], the following definitions apply:
(1) "ALCOHOL" MEANS AN INTOXICATING AGENT IN ALCOHOLIC BEVERAGES, ETHYL ALCOHOL, ALSO CALLED ETHANOL, OR THE HYDRATED OXIDE OF ETHYL.
(2) "ALCOHOL CONCENTRATION" MEANS THE ALCOHOL IN A VOLUME OF BREATH EXPRESSED IN TERMS OF GRAMS OF ALCOHOL PER 210 LITERS OF BREATH, AS INDICATED BY AN EVIDENTIAL BREATH TEST.
(1)(3) "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 IN 49 CFR, PART 40, except a drug used pursuant to a valid prescription or as authorized by
law. (2)(4) "Employee" means an individual engaged in the performance, SUPERVISION, OR MANAGEMENT of work IN A
HAZARDOUS WORK ENVIRONMENT, SECURITY POSITION, POSITION AFFECTING PUBLIC SAFETY, OR
FIDUCIARY POSITION for a private AN employer and does not include an independent contractor. THE TERM
INCLUDES AN ELECTED OFFICIAL. (3)(5) "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.
(6) "HAZARDOUS WORK ENVIRONMENT" INCLUDES BUT IS NOT LIMITED TO POSITIONS:
(A) FOR WHICH
DRUG CONTROLLED SUBSTANCE AND ALCOHOL TESTING IS MANDATED BY FEDERAL
LAW, SUCH AS AVIATION, INTERSTATE COMMERCIAL MOTOR CARRIER, RAILROAD, PIPELINE, AND
COMMERCIAL MARINE EMPLOYEES;
(B) THAT INVOLVE THE OPERATION OF OR WORK IN PROXIMITY TO CONSTRUCTION EQUIPMENT, INDUSTRIAL MACHINERY, OR MINING ACTIVITIES; OR
(C) THAT INVOLVE HANDLING OR PROXIMITY TO FLAMMABLE MATERIALS, EXPLOSIVES, TOXIC CHEMICALS, OR SIMILAR SUBSTANCES.
(7) "INITIAL TEST" MEANS SCIENTIFICALLY ACCEPTED ANALYTICAL METHODS AND PROCEDURES THAT HAVE BEEN CLEARED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION FOR COMMERCIAL DISTRIBUTION. SPECIMEN COLLECTION AND CHAIN OF CUSTODY PROCEDURES FOR AN INITIAL TEST MUST CONFORM TO 49 CFR, PART 40.
(4)(6)(7)(8) "Medical review officer" means a state-licensed LICENSED physician trained in the field of substance abuse. (5)(7)(8)(9) "Prospective employee" means an individual who has made a written or oral application to an employer to
become an employee. (6)(8)(9)(10) "Qualified testing program" means a program to test for the presence of controlled substances and alcohol that
meets the criteria set forth in [sections 43 and 54]. (7)(9)(10)(11) "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 THROUGH 8] and rules adopted
pursuant to [sections 4 and 5 THROUGH 8]. (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
NEW SECTION. Section 3. 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
THE TERMS ARE IMPLEMENTED OR CHANGED. CONTROLLED SUBSTANCE AND ALCOHOL TESTING
PROCEDURES MUST CONFORM TO 49 CFR, PART 40, EXCEPT AN INITIAL TEST FOR A CONTROLLED
SUBSTANCE OR ALCOHOL MAY BE USED AS PROVIDED IN SUBSECTION (8). 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 PROGRAM for REGULARLY educating or providing information to employees on the health
AND WORKPLACE SAFETY 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;
a statement that employees may be tested, including a discussion DESCRIPTION of the circumstances that may trigger
an immediate test IDENTIFICATION OF THE TYPES OF CONTROLLED SUBSTANCE AND ALCOHOL TESTS TO
BE USED FROM THE TYPES OF TESTS LISTED IN [SECTION 4];
(g) a list of controlled substances for which the employer intends to test AND A STATED ALCOHOL CONCENTRATION LEVEL ABOVE WHICH A TESTED EMPLOYEE MUST BE SANCTIONED;
(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;
employees or agents of the employer who are specifically authorized by the tested employee to resolve RECEIVE the
employee's test results THE DESIGNATED REPRESENTATIVE OF THE EMPLOYER; or
in a proceeding related to a legal action IN CONNECTION WITH ANY LEGAL OR ADMINISTRATIVE CLAIM
arising out of the employer's implementation of [sections 1 through 5 87] 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 FOLLOWUP TESTING 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, TRANSPORT, AND CONFIRMATION TESTING OF URINE samples must be performed IN 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 ACCORDANCE WITH 49 CFR, PART 40. (7)(5) 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
(6) BREATH ALCOHOL TESTS MUST BE ADMINISTERED BY A CERTIFIED BREATH ALCOHOL TECHNICIAN AND MAY ONLY BE CONDUCTED USING TESTING EQUIPMENT THAT APPEARS ON THE LIST OF CONFORMING PRODUCTS PUBLISHED IN THE FEDERAL REGISTER.
(7) A BREATH ALCOHOL TEST RESULT MUST INDICATE AN ALCOHOL CONCENTRATION OF GREATER THAN 0.04 FOR A PERSON TO BE CONSIDERED AS HAVING ALCOHOL IN THE PERSON'S BODY.
(8) AN EMPLOYER MAY USE AN INITIAL TEST TO SCREEN AN EMPLOYEE OR PROSPECTIVE EMPLOYEE FOR THE USE OF A CONTROLLED SUBSTANCE OR ALCOHOL. IF THE INITIAL TEST RESULTS INDICATE A POTENTIAL POSITIVE, THE INITIAL TEST MUST BE CONFIRMED. CONFIRMATION TESTS MUST BE COMPLETED USING COLLECTION, TRANSPORTING, AND TESTING PROCEDURES THAT CONFORM TO 49 CFR, PART 40. ONLY CONFIRMED TEST RESULTS MAY BE USED TO DETERMINE IF AN EMPLOYEE TESTS POSITIVE FOR A CONTROLLED SUBSTANCE OR ALCOHOL. ONLY CONFIRMED POSITIVE OR NEGATIVE TEST RESULTS MAY BE ENTERED INTO AN EMPLOYEE'S PERSONNEL FILE.
NEW SECTION. SECTION 4. QUALIFIED TESTING PROGRAM -- ALLOWABLE TYPES -- PROCEDURES. EACH OF THE FOLLOWING ACTIVITIES IS PERMISSIBLE IN THE IMPLEMENTATION OF A QUALIFIED TESTING PROGRAM:
(1) AN EMPLOYER MAY TEST ANY
NEWLY HIRED PROSPECTIVE EMPLOYEE AS A CONDITION OF HIRE
WITHIN 5 DAYS OF THE EMPLOYEE'S REPORTING TO WORK.
(2) AN EMPLOYER MAY USE RANDOM TESTING IF THE EMPLOYER'S CONTROLLED SUBSTANCE AND ALCOHOL POLICY INCLUDES ONE OR BOTH OF THE FOLLOWING PROCEDURES:
(A) AN EMPLOYER OR AN EMPLOYER'S REPRESENTATIVE MAY ESTABLISH A DATE WHEN ALL SALARIED AND WAGE-EARNING EMPLOYEES WILL BE REQUIRED TO UNDERGO CONTROLLED SUBSTANCE OR ALCOHOL TESTS, OR BOTH.
(B) AN EMPLOYER MAY MANAGE OR CONTRACT WITH A THIRD PARTY TO ESTABLISH AND ADMINISTER A RANDOM TESTING PROCESS THAT MUST INCLUDE:
(I) AN ESTABLISHED CALENDAR PERIOD FOR TESTING;
(II) AN ESTABLISHED TESTING RATE WITHIN THE CALENDAR PERIOD;
(III) A RANDOM SELECTION PROCESS THAT WILL DETERMINE WHO WILL BE TESTED ON ANY GIVEN DATE DURING THE CALENDAR PERIOD FOR TESTING;
(IV) ALL SUPERVISORY AND MANAGERIAL EMPLOYEES IN THE RANDOM SELECTION AND TESTING PROCESS; AND
(V) A PROCEDURE THAT REQUIRES THE EMPLOYER TO OBTAIN A SIGNED STATEMENT FROM EACH EMPLOYEE THAT CONFIRMS THAT THE EMPLOYEE HAS RECEIVED A WRITTEN DESCRIPTION OF THE RANDOM SELECTION PROCESS AND THAT REQUIRES THE EMPLOYER TO MAINTAIN THE STATEMENT IN THE EMPLOYEE'S PERSONNEL FILE. THE SELECTION OF EMPLOYEES IN A RANDOM TESTING PROCEDURE MUST BE MADE BY A SCIENTIFICALLY VALID METHOD, SUCH AS A RANDOM NUMBER TABLE OR A COMPUTER-BASED RANDOM NUMBER GENERATOR TABLE.
(3) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO SUBMIT TO FOLLOWUP TESTS IF THE
DETERMINES THAT THE EMPLOYEE HAS MISUSED CONTROLLED SUBSTANCES OR ALCOHOL AT THE
WORK SITE EMPLOYEE HAS HAD A VERIFIED POSITIVE TEST FOR A CONTROLLED SUBSTANCE OR FOR
ALCOHOL. THE FOLLOWUP TESTS MUST BE DESCRIBED IN THE EMPLOYER'S CONTROLLED SUBSTANCE
AND ALCOHOL POLICY AND MAY BE CONDUCTED FOR UP TO 1 YEAR FROM THE TIME THAT THE
EMPLOYER FIRST REQUIRES A FOLLOWUP TEST.
(4) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO BE TESTED FOR CONTROLLED SUBSTANCES OR ALCOHOL IF THE EMPLOYER HAS REASON TO SUSPECT THAT AN EMPLOYEE'S FACULTIES ARE IMPAIRED ON THE JOB AS A RESULT OF THE USE OF A CONTROLLED SUBSTANCE OR ALCOHOL CONSUMPTION. AN EMPLOYER SHALL COMPLY WITH THE SUPERVISORY TRAINING REQUIREMENT IN 49 CFR, PART 382.603, WHENEVER THE EMPLOYER REQUIRES A TEST ON THE BASIS OF REASONABLE SUSPICION.
(5) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO BE TESTED FOR CONTROLLED SUBSTANCES OR
ALCOHOL IF THE EMPLOYER HAS REASON TO BELIEVE THAT THE
EMPLOYEE MAY HAVE
CONTRIBUTED TO EMPLOYEE'S ACT OR FAILURE TO ACT IS A DIRECT OR PROXIMATE CAUSE OF A
WORK-RELATED ACCIDENT THAT HAS CAUSED DEATH OR PERSONAL INJURY OR PROPERTY DAMAGE
IN EXCESS OF $1,500.
NEW SECTION. SECTION 5. EMPLOYEE'S RIGHT OF REBUTTAL. THE EMPLOYER SHALL PROVIDE AN
EMPLOYEE WHO HAS BEEN TESTED UNDER ANY QUALIFIED TESTING PROGRAM DESCRIBED IN
5 4] WITH A COPY OF THE TEST REPORT. THE EMPLOYER IS ALSO REQUIRED TO OBTAIN, AT
THE EMPLOYEE'S REQUEST AND AT THE EMPLOYEE'S EXPENSE, AN ADDITIONAL TEST OF THE URINE
SPLIT SAMPLE BY AN INDEPENDENT LABORATORY SELECTED BY THE PERSON TESTED. THE
EMPLOYER SHALL PAY FOR THE ADDITIONAL TESTS IF THE ADDITIONAL TEST RESULTS ARE
NEGATIVE, AND THE EMPLOYEE SHALL PAY FOR THE ADDITIONAL TESTS IF THE ADDITIONAL TEST
RESULTS ARE POSITIVE. THE EMPLOYEE MUST BE PROVIDED THE OPPORTUNITY TO REBUT OR
EXPLAIN THE RESULTS OF ANY TEST.
NEW SECTION. SECTION 6. LIMITATION ON ADVERSE ACTION.
ADVERSE NO ADVERSE ACTION,
INCLUDING FOLLOWUP TESTING, MAY NOT BE TAKEN BY THE EMPLOYER IF THE EMPLOYEE PRESENTS
A REASONABLE EXPLANATION OR MEDICAL OPINION INDICATING THAT THE ORIGINAL TEST RESULTS
WERE NOT CAUSED BY ILLEGAL USE OF CONTROLLED SUBSTANCES OR BY ALCOHOL CONSUMPTION.
IF THE EMPLOYEE PRESENTS A REASONABLE EXPLANATION OR MEDICAL OPINION, THE TEST RESULTS
MUST BE REMOVED FROM THE EMPLOYEE'S RECORD AND DESTROYED.
NEW SECTION. Section 7. 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 8 7]; 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 8. 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 9. Codification instruction. [Sections 1 through
5 8 7] 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 8
NEW SECTION. SECTION 10. SEVERABILITY. IF A PART OF [THIS ACT] IS INVALID, ALL VALID PARTS THAT ARE SEVERABLE FROM THE INVALID PART REMAIN IN EFFECT. IF A PART OF [THIS ACT] IS INVALID IN ONE OR MORE OF ITS APPLICATIONS, THE PART REMAINS IN EFFECT IN ALL VALID APPLICATIONS THAT ARE SEVERABLE FROM THE INVALID APPLICATIONS.