Quality Assurance of Drug Testing Act of 1990

Quality Assurance of Drug Testing Act of 1990 - Amends the Public Health Service Act to prohibit performing toxicological analysis in connection with a drug testing program unless certified.

Directs the Secretary of Health and Human Services to establish a program for certifying laboratories for performing drug tests, with annual review of certification criteria.

Requires an employer, as a condition of maintaining a drug testing program, to establish a written anti-drug abuse policy and a drug-free awareness program.

Declares that nothing in this Act prohibits an employer from requiring a drug test of applicants and, in certain circumstances, employees.

Sets forth certain employee protections, including requiring several types of notice and prohibiting: (1) subject to exception, adverse action based on unconfirmed results; and (2) retaliation for exercise of an employee right.

Prohibits disclosure of test results, except in specified circumstances.

Declares that nothing in this Act prohibits an employer from: (1) taking action necessary to ensure a safe workplace; (2) taking action necessary, including termination, in certain circumstances; (3) requiring certain employees to participate in a treatment program; or (4) refusing to place or reinstate an employee with a confirmed positive test in a sensitive position.

Directs the Secretary to establish a program for the certification of laboratories for the performance of toxicological urinalysis conducted for drug testing programs. Requires the certification program to be enforced under the procedures and sanctions in specified provisions relating to the licensing of clinical laboratories.

Sets forth procedures for employee complaints of unlawful discharge or discrimination. Directs the Secretary, on a finding of a violation of this Act, to provide relief as the Secretray determines appropriate, including reinstatement, promotion, and the payment of lost wages and benefits. Declares the good faith compliance of an employer with the standards and procedures of this Act to constitute an affirmative defense.

Declares that this Act does not require an employer to establish a drug testing program or make employment decisions based on test results.

Declares that this Act preempts any State or local law or regulation, but does not prohibit the Secretary of Transportation or the Nuclear Regulatory Commission from issuing regulations on drug and alcohol testing.

Allows professional athletes to be treated as sensitive employees, except that they are not covered by provisions prohibiting disclosure of test results.

 
HR 3940 IH
101st CONGRESS
2d Session
 H. R. 3940
To amend the Public Health Service Act to establish Federal standards to
ensure quality assurance of drug testing programs, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
February 1, 1990
Mr. SOLOMON introduced the following bill; which was referred jointly to the
Committees on Energy and Commerce, Education and Labor, and Post Office and
Civil Service
A BILL
To amend the Public Health Service Act to establish Federal standards to
ensure quality assurance of drug testing programs, and for other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Quality Assurance of Drug Testing Act of 1990'.
SEC. 2. FINDINGS.
  Congress finds that--
  (1) drug abuse in the workplace is a serious national problem, and
  (2) drug testing can be an effective deterrent to drug abuse when
  administered in a manner that provides for quality assurance.
SEC. 3. PUBLIC HEALTH SERVICE ACT.
  (a) DRUG TESTING- The Public Health Service Act is amended--
  (1) by redesignating title XXVI (42 U.S.C. 300cc et seq.) as title XXVII, and
  (2) by inserting after title XXV (42 U.S.C. 300bb-1 et seq.) the following
  new title:
`TITLE XXVI--QUALITY ASSURANCE IN DRUG TESTING
`SEC. 2601. LABORATORY CERTIFICATION STANDARDS.
  `(a) PROHIBITION- No individual may perform a toxicological analysis in
  connection with any drug testing program that is subject to this title unless
  such analysis is conducted in a laboratory certified under subsection (b).
  `(b) CERTIFICATION- Not later than 1 year after the date of enactment
  of this title, the Secretary shall establish a program for certifying
  laboratories that meet standards for performing--
  `(1) drug screening tests,
  `(2) drug confirmatory tests, and
  `(3) both drug screening and confirmatory tests.
  `(c) CRITERIA- In establishing standards for certification under subsection
  (b), the Secretary shall use criteria that will maximize the predictive
  value of the testing scheme and that take into consideration the practices,
  procedures, and experience of drug testing programs which the Secretary
  determines are conducted in accordance with appropriate standards and
  procedures.
  `(d) PERIODIC REVIEW- At least once each year, the Secretary shall review,
  and where appropriate revise, the certification criteria established
  under subsection (b), taking into consideration the relevant scientific
  technical advances in the area of drug testing and revisions needed to
  reflect employer zero-drug tolerance practices.
`SEC. 2602. ANTI-DRUG ABUSE POLICY.
  `(a) WRITTEN POLICY- As a condition of implementing or maintaining a drug
  testing program, an employer shall establish a written anti-drug abuse
  policy that shall contain, at a minimum, an explanation concerning the--
  `(1) circumstances under which a drug test will be administered, the
  procedures for notifying an employee of a confirmed positive result,
  and a statement the policy will be administered in a consistent and
  nondiscriminatory manner without regard to whether the employee is employed
  in a management or hourly capacity,
  `(2) safeguards established for protecting the privacy of individuals
  who are subject to testing, including chain custody procedures and the
  limitations on disclosure of the results of drug tests,
  `(3) availability of any drug abuse treatment program,
  `(4) penalties that may be imposed for a violation of the anti-drug policy
  of the employer, and
  `(5) procedures under which an applicant or employee shall be given a
  reasonable opportunity to explain a confirmed positive test result.
  `(b) NOTICE- An employer shall make a reasonable effort to provide notice
  of the written anti-drug abuse policy to applicants and employees subject
  to testing using whatever methods the employer determines to be appropriate.
`SEC. 2603. DRUG-FREE AWARENESS PROGRAM.
  `In order for an employer to be permitted to implement or maintain a drug
  testing program, such employer shall establish, as part of such drug
  testing program, a drug-free awareness program designed to inform its
  employees concerning--
  `(1) the dangers of drug abuse, both inside and outside of the workplace,
  `(2) the policy of the employer of maintaining a drug-free workplace,
  `(3) information as to the existence and availability of counseling,
  employee assistance, rehabilitation, and other drug abuse treatment programs
  of which the employer is aware, and
  `(4) the penalties that may be imposed on applicants and employees who
  test positive for the use of a drug, and for the manufacture, distribution,
  dispensation, possession, or use of a drug in the workplace of the employer.
`SEC. 2604. STANDARDS FOR DRUG TESTING.
  `(a) APPLICANTS- Nothing in this title shall be construed to prohibit an
  employer from requiring, as a condition of employment, that an applicant
  submit to and pass a drug test based on criteria established by the employer
  that is designed to achieve a drug-free workplace. Refusal by an applicant
  to submit to such a test may be treated in the same manner as a failure
  to pass a drug test.
  `(b) EMPLOYEES- Nothing in this title shall be construed to prohibit an
  employer from requiring an employee to submit to and pass a drug test--
  `(1) where the employer has reasonable suspicion to believe that the
  employee is using or under the influence of a drug,
  `(2) where such test is administered as part of a scheduled medical
  examination,
  `(3) in the case of an accident or incident involving the actual or potential
  loss of human life, serious bodily injury, or significant property damage,
  `(4) during and for a reasonable period of time (not to exceed 5 years)
  after the completion of a drug abuse treatment program, or
  `(5) in the case of sensitive employee positions, work units, locations,
  or facilities where drug abuse has been identified as a problem, on a
  random basis.
  `(c) DEFINITION- As used in this title, the term `random' means the selection
  of individuals for testing based on a nondiscriminatory impartial methods
  so that no employee is harassed or treated differently from other employees
  in similar circumstances.
`SEC. 2505. EMPLOYEE PROTECTIONS.
  `(a) PROHIBITIONS- In the case of an applicant or employee, it shall be
  a violation of this title--
  `(1) for an employer to fail to make reasonable efforts to inform the
  applicant or employee as to the drug testing policy of the employee,
  `(2) for an employer to take any adverse action based on the unconfirmed
  positive results of a drug test, except as provided in subsection (c),
  `(3) for an employer, on the request of an applicant or employee, to fail
  to provide such applicant or employee with a reasonable opportunity to be
  informed of a confirmed positive drug test result, and
  `(4) for an employer, on the request of an applicant or employee, to fail
  to provide such applicant or employee with a reasonable opportunity to
  explain the results of a confirmed positive test result.
  `(b) ANTIRETALIATION PROHIBITION- It shall be a violation of this title for
  an employer to take retaliatory action against an employee because of the
  exercise by the employee of any right granted or protected under this title.
  `(c) EXCEPTION FOR SENSITIVE EMPLOYEES- Pending the receipt of the results
  of a confirmatory drug test, an employer may transfer or reassign an
  employee in a sensitive position to another area or position without any
  loss in compensation to such employee if the initial drug test result
  is positive. If a confirmatory test of such employee is negative, such
  employee shall be entitled to immediate reinstatement to the position from
  which such employee has been transferred or reassigned.
`SEC. 2606. CONFIDENTIALITY.
  `(a) IN GENERAL- An individual, other than the applicant or employee who
  is the subject of a drug test, shall not disclose information obtained as
  a result of a drug test, except as provided in subsection (b).
  `(b) PERMITTED DISCLOSURES- An employer, or individual conducting a drug
  test on behalf of an employer, may disclose information acquired from a
  drug test only to--
  `(1) the applicant or employee taking such drug test or any other individual
  specifically designated in writing by such applicant or employee taking
  such drug test,
  `(2) the employer, including the designated representative of such employer,
  that requested such test,
  `(3) any court, governmental agency, arbitrator, or mediator, in accordance
  with Federal or State law, and
  `(4) appropriate drug abuse treatment providers.
`SEC. 2607. EMPLOYER PRACTICES.
  `(a) SAFE WORKPLACE- Nothing in this title shall be construed to prohibit
  an employer from taking action necessary to ensure a safe workplace.
  `(b) DRUG-FREE WORKPLACE- Nothing in this title shall be construed to
  prohibit an employer from taking action necessary, up to and including
  termination, in the case of applicant or employee--
  `(1) whose drug test result is confirmed positive,
  `(2) who refuses to take a drug test authorized under this title, or
  `(3) who tampers with or adulterates a drug testing specimen.
  `(c) PARTICIPATION IN DRUG ABUSE TREATMENT PROGRAM- Nothing in this title
  shall be construed to prohibit an employer from requiring an employee to
  participate in, and satisfactorily complete, a drug treatment program as a
  condition of continued employment where the employee has tested confirmed
  positive for drugs, has refused to submit to a drug test, or has tampered
  with or adulterated a drug test specimen.
  `(d) SENSITIVE POSITION- Nothing in this title shall be construed to
  prohibit an employer from refusing to place an employee in, or reinstate
  such employee, to a sensitive position if such employee has tested confirmed
  positive for drug use.
`SEC. 2608. DRUG ABUSE TREATMENT PROGRAMS.
  `As part of the drug-free awareness program established pursuant to section
  2603, employers shall provide information to employees concerning the
  existence and availability of public and private drug counseling, employee
  assistance, rehabilitation, and other drug abuse treatment programs of
  which the employer is aware.
`SEC. 2609. REGULATIONS.
  `Not later than 1 year after the date of enactment of this title, the
  Secretary shall--
  `(1) establish a program for the certification of laboratories for the
  performance of toxicological urinalysis conducted for drug testing programs
  as described in this title, and
  `(2) issue such other rules and regulations as may be necessary or
  appropriate to carry out this title.
`SEC. 2610. ENFORCEMENT AND RELIEF.
  `(a) LABORATORY CERTIFICATION STANDARDS- The certification program
  established pursuant to section 2601(b) shall be enforced in accordance
  with the procedures and sanctions contained in subsections (g), (h), (i),
  (j), (k), and (l) of section 353.
  `(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL DISCHARGE OR DISCRIMINATION,
  INVESTIGATION ORDER.
  `(1) COMPLAINT- An employee who believes that such employee has been
  charged or otherwise discriminated against by an employer in violation
  of this title may, not later than 30 days after such action occurs, file
  (or have any individual file on behalf of such employee) a complaint with
  the Secretary of Labor (hereinafter referred to in this subsection as
  the `Secretary') alleging that such discharge or discrimination violates
  this title. On receipt of such complaint, the Secretary shall notify the
  individual named in the complaint of such filing.
  `(2) Investigation and order-
  `(A) INVESTIGATION- On receipt of a complaint filed under paragraph (1),
  the Secretary shall conduct an investigation of the violation alleged in
  such complaint. Not later than 30 days after the receipt of such complaint,
  the Secretary shall complete such investigation and shall notify in writing
  the employer (and any individual acting on behalf of the employer) as to
  the results of such investigation.
  `(B) ORDER- Not later than 30 days after the completion of such
  investigation, the Secretary shall, unless the proceeding on the complaint is
  terminated by the Secretary on the basis of a settlement entered into by the
  Secretary and the employer alleged to have committed such violation, issue
  an order either providing the relief prescribed in this section or denying
  the complaint. An order of the Secretary issued under this subparagraph
  shall be made on the record after notice and opportunity for public hearing.
  `(3) RELIEF- If, in response to a complaint filed under paragraph (1),
  the Secretary determines that a violation of this title has occurred, the
  Secretary shall order the employer who committed such violation to provide
  such suitable relief as the Secretary determines appropriate, including
  reinstatement, promotion, and the payment of lost wages and benefits.
  `(4) REVIEW OR ORDER- An employee or employer adversely affected or aggrieved
  by an order issued under paragraph (2) may obtain review of such order in
  the United States Court of Appeals for the circuit in which the violation,
  with respect to which the order was issued, allegedly occurred. The petition
  for review shall be filed not later than 60 days after the issuance of
  the order of the Secretary under paragraph (2). Review by the Court of
  Appeals shall conform to chapter 7 of Title 5, United States Code.
  `(5) FAILURE TO COMPLY- If an employee or employer fails to comply with an
  order issued under paragraph (2), the Secretary may file a civil action
  in the United States court for the district in which the violation was
  found to occur to enforce such order. Such court, in issuing any final
  order under this subsection, may award the costs of litigation (including
  reasonable attorney and expert witness fees) to the prevailing party.
  `(c) AFFIRMATIVE DEFENSE- The good faith compliance of an employer with
  the standards and procedures established under this title shall constitute
  an affirmative defense against any complaint filed under subsection (b).
  `(d) CONSTRUCTION- Nothing in this title shall be construed to require an
  employer to establish a drug testing program for applicants or employees
  or make employment decisions based on such test results.
`SEC. 2611. EFFECT ON OTHER LAWS.
  `(a) STATE LAW, SUPERSEDURE- This title shall preempt any State or local
  law, rule, regulation, order or standard that applies to the drug testing
  of an applicant or employee, or that relates to any matter addressed under
  this title. No State or local government shall adopt or enforce any law,
  rule, regulation, ordinance, standard or order relating to--
  `(1) the certification of laboratories that perform drug testing analysis
  with respect to such analysis,
  `(2) requirements for the conduct of drug testing under the certification
  program established under this title,
  `(3) the conducting of employee or applicant drug testing programs, or
  `(4) any other matter relating to this title.
  `(b) OTHER FEDERAL LAWS- Nothing in this title shall be construed to prohibit
  the Secretary of Transportation or the Nuclear Regulatory Commission from
  issuing regulations with respect to drug and alcohol testing.
`SEC. 2612. EFFECTIVE DATE.
  `This title shall become effective 2 years after the date of enactment of
  this title, except that the prohibition contained in section 2601(a) shall
  not take effect less than 1 year after establishment of the certification
  program required under section 2601(b).
`SEC. 2613. DEFINITIONS.
  `As used in this title:
  `(1) APPLICANT- The term `applicant' means any individual who has submitted
  an application to an employer, whether written or oral, for employment
  with such employer.
  `(2) DRUG- The term `drug' means any controlled substance listed in
  Scheduled I through V of section 202 of the Controlled Substances Act
  (21 U.S.C. 812), alcohol, steroids, and any other drug or medication that
  can interfere with employment performance.
  `(3) DRUG ABUSE TREATMENT PROGRAM- The term `drug abuse treatment program'
  means a program, such as an employee assistance program, designed to assist
  an individual in dealing with problems caused by drug abuse.
  `(4) DRUG TEST- The term `drug test' means any test procedure used to take
  and analyze blood, breath, hair, urine or other body fluids or materials
  for the purpose of detecting the presence or absence of a drug or its
  metabolites.
  `(5) EMPLOYEE- The term `employee' means an individual employed by an
  employer.
  `(f) EMPLOYER- The term `employer' means an individual, partnership,
  corporation, association, or other entity (including the Federal Government),
  that employs one or more employees, and that is engaged in an industry
  affecting commerce.
  `(g) SENSITIVE EMPLOYEE- The term `sensitive employee' means an individual
  employed in a position whose duties, as defined by the employer, involve
  responsibilities affecting such matters as national security, health, or
  safety, environment, or other responsibilities requiring a high degree of
  trust and confidence.
`SEC. 2614. PROFESSIONAL ATHLETES.
  `For purposes of this title, professional athletes may be treated in
  the same manner as employees who meet the definition of section 2614(g),
  except that professional athletes shall not be covered by section 2606(a).'.
  (b) Conforming Amendments-
  (1) Sections 2601 through 2614 of the Public Health Service Act (42
  U.S.C. 300cc through 300cc-15) are redesignated as sections 2701 through
  2714, respectively.
  (2)(A) Sections 465(f) and 497 of such Act (42 U.S.C. 286(f) and 289(f))
  are each amended by striking out `2601' and inserting `2701'.
  (B) Section 305(i) of such Act (42 U.S.C. 242c(i)) is amended by striking
  out `2611' each place it appears and inserting `2711'.