[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1303 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                S. 1303

 To amend the Public Health Service Act to establish Federal standards 
 to ensure quality assurance in private sector drug testing programs, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 28 (legislative day, June 30), 1993

 Mr. Hatch (for himself and Mr. Boren) introduced the following bill; 
 which was read twice and referred to the Committee on Labor and Human 
                               Resources

_______________________________________________________________________

                                 A BILL


 
 To amend the Public Health Service Act to establish Federal standards 
 to ensure quality assurance in private sector 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 in the Private 
Sector Drug Testing Act of 1993''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds that--
            (1) drug abuse imposes an enormous toll upon society in 
        terms of broken families and individuals suffering, infants 
        born with disabilities from their mother's drug abuse, lost 
        productivity, increased treatment and health care costs, and 
        the generation of criminal conduct which threatens the very 
        social fabric of many communities;
            (2) drug testing can be an effective deterrent to drug 
        abuse when administered in a manner that provides for quality 
        assurance;
            (3) drug abuse in the workplace is a serious national drug 
        problem;
            (4) the private sector workplace is an appropriate arena in 
        which to fight the war on drugs through the establishment of 
        drug-free workplace programs that include drug testing;
            (5) there are currently many good quality private sector 
        drug testing programs, in which testing is performed in a 
        variety of settings, such as: in testing facilities at the 
        employment site, in clinics, hospitals and small independent 
        testing laboratories, and in large, high-volume specialized 
        testing laboratories. Under appropriately designed standards 
        and procedures taking into account the experience of these 
        programs, each of these options will have a place in a well-
        designed regulatory system; and
            (6) the ``Mandatory Guidelines for Federal Workplace Drug 
        Testing Programs'' issued by the Department of Health and Human 
        Services on April 11, 1988 are generally responsive to 
        Congressional concerns for quality testing in Federal Workplace 
        drug testing programs, and on a solid footing. These Guidelines 
        do not embody the only proper approach to the challenge of 
        providing test quality or employee protection in the Federal 
        workplace, and key features of the Guidelines must undergo 
        continuing scrutiny and rethinking. While a number of the 
        current Guidelines' provisions are not suitable for 
        incorporation into a drug testing regulatory system for the 
        private sector workplace, many of the Guidelines' principles 
        and standards are appropriate for that purpose.
    (b) Purpose.--It is the purpose of this Act--
            (1) to establish Federal standards applicable to private 
        sector workplace drug testing programs that will assure the 
        quality of such programs; and
            (2) to ensure uniformity and consistency in the application 
        of such federal standards to preempt State and local laws and 
        such other requirements that regulate private sector workplace 
        drug testing programs.

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 PRIVATE SECTOR DRUG TESTING

``SEC. 2601. LABORATORY CERTIFICATION STANDARDS.

    ``(a) Prohibition.--No person may perform a drug test in connection 
with any drug testing program that is subject to the provisions of this 
title unless such person is a laboratory certified pursuant to 
subsection (b).
    ``(b) Certification.--Not later than 1 year after the date of 
enactment of this title, the Secretary of Health & Human Services 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) Scientific and Technical Criteria.--
            ``(1) In establishing standards for certification under 
        subsection (b), the Secretary shall use scientific and 
        technical standards that:
                    ``(A) maximize the sensitivity and specificity of 
                the testing scheme;
                    ``(B) give due regard to the experience and 
                practices of drug testing in the private sector 
                workplace; and
                    ``(C) take into consideration the practices, 
                procedures, and experience of forensic toxicology 
                laboratory certification programs conducted by private, 
                non-profit accrediting entities. The Secretary is 
                authorized to designate such entities or appropriate 
                State agencies to administer the certification program 
                established under this section. The Secretary shall 
                oversee and review the performance of any such entity 
                or State agency so designated to ensure its compliance 
                with the certification program established under this 
                section.
            ``(2) In establishing the certification program required 
        under subsection (b), the Secretary shall appoint and consult 
        with an expert advisory panel not to exceed 15 members 
        comprised equally of representatives of private sector 
        employers and employees with experience in workplace drug 
        testing, laboratories which conduct drug testing, and 
        recognized scientific and professional disciplines within the 
        drug testing community.
            ``(3) The certification standards required under this 
        section shall include:
                    ``(A) reasonable requirements for chain of custody 
                procedures, for laboratory staff training and skills, 
                for ensuring the identity and integrity of specimens, 
                and for confidentiality of test results;
                    ``(B) laboratory quality assurance requirements, to 
                include where appropriate minimum proficiency sampling, 
                in order to assure the competence of the laboratory to 
                conduct drug testing under this title. Responsibility 
                for laboratory quality assurance, including where 
                appropriate the provision of blind samples, shall rest 
                on the Secretary or his designee;
                    ``(C) a requirement that any sample which tests 
                positive on an initial screen test be submitted for a 
                confirmatory test to a laboratory certified for 
                performing such a test under this title;
                    ``(D) a requirement that all negative test results 
                by initial screen be reported to the employer promptly 
                by direct means;
                    ``(E) a requirement that no positive drug test 
                result be reported to the employer before a 
                confirmatory test has been conducted, except in the 
                case of employees in sensitive positions pursuant to 
                Sec. 2605(c) of this title,
                    ``(F) prompt adoption of testing protocols for any 
                drug for which reliable testing methods are available 
                and for other drugs as such methods become available;
                    ``(G) initial screen cutoff levels to reflect 
                current testing technology;
                    ``(H) no bar to certification of a laboratory based 
                on its physical setup or location, and no bar to 
                certification of a laboratory which is part of a 
                hospital or medical clinic on the grounds that the 
                laboratory's drug testing facility is not separate from 
                a secure laboratory facility which performs diagnostic 
                or therapeutic tests, nor on the grounds that staff 
                medical personnel are allowed access to the testing 
                facility, so long as the laboratory meets the 
                requirements of this title; and
                    ``(I) a requirement that, after the effective date 
                of regulations implementing section 353 of the Public 
                Health Service Act, 42 U.S.C. 263a, a laboratory may 
                not be certified under the program established by this 
                section unless the laboratory is certified under 
                section 353, except that a laboratory which performs 
                only drug tests is not required to be certified under 
                section 353 to be certified under this certification 
                program, nor is it required to be certified under 
                section 353 for the purposes of that section.
            ``(4) A laboratory which performs drug tests only on 
        samples of arrestees, detainees, probationers, incarcerated 
        persons, or parolees in the criminal justice system is not 
        required to be certified under this section nor under section 
        353.
    ``(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 
        sample which tests positive in a confirmatory test, and a 
        statement the policy will be administered in a consistent and 
        nondiscriminatory manner without regard to the position the 
        employee holds;
            ``(2) safeguards established for protecting the privacy of 
        individuals who are subject to testing, including chain of 
        custody procedures and the limitations on disclosure of the 
        results of drug tests;
            ``(3) availability of drug abuse treatment programs;
            ``(4) penalties that may be imposed by the employer for a 
        violation of the anti-drug abuse policy of the employer;
            ``(5) procedures for review by a medical officer in the 
        case of a sample which tests positive in a confirmatory test; 
        and
            ``(6) procedures under which an applicant or employee shall 
        be given a reasonable opportunity to explain a sample which 
        tests positive in a confirmatory test.
    ``(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 by the employer 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 are 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) on a for cause basis or where the employer has 
        reasonable suspicion to believe that the employee is using or 
        is 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, bodily injury, or 
        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) on a random selection basis--
                    ``(A) in the case of sensitive employee positions;
                    ``(B) in work units, locations, or facilities where 
                drug abuse has been identified as a problem; or
                    ``(C) as part of a universal testing program.
    ``(c) Definition.--As used in this title, the term `random' means 
the selection of individuals for testing based on uniform criteria so 
that no employee is selected differently from other employees in 
similar circumstances. The term `universal testing' means a program in 
which every employee in a particular work unit, location, or facility 
of an employer is tested.

``SEC. 2605. 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 sample which tests 
        positive in a confirmatory test; 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 sample which 
        tests positive in a confirmatory test.
    ``(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 
this section.
    ``(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--
            ``(1) to 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) to the employer, including the duly authorized 
        representatives of such employer, that requested such test;
            ``(3) to any court, governmental agency, arbitrator, or 
        mediator, in accordance with the provisions of Federal or State 
        law;
            ``(4) to appropriate drug abuse treatment providers; or
            ``(5) as required in defense of claims, suits, or 
        proceedings challenging any employment action taken by an 
        employer in reliance in whole or in part upon a drug test.

``SEC. 2607. EMPLOYER PRACTICES.

    ``(a) Safe Workplace.--Nothing in this title shall be construed to 
prohibit an employer from taking action necessary to apply personnel 
procedures and policies designed to ensure a safe workplace, without 
regard to whether or not a drug test is administered.
    ``(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 is determined to be positive after a 
        confirmatory test;
            ``(2) who refuses to take a drug test authorized under this 
        title; or
            ``(3) who tampers with or adulterates a drug testing 
        sample.
    ``(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 abuse 
treatment program as a condition of continued employment where the 
employee has a sample which tests positive in a confirmatory test, has 
refused to submit to a drug test, or has tampered with or adulterated a 
drug test sample.
    ``(d) Sensitive Position.--Notwithstanding any other provision of 
law, nothing in this title shall be construed to prohibit an employer 
from refusing to place an employee in, or to reinstate such employee, 
to a sensitive position if such employee has a sample which tests 
positive in a confirmatory test.

``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 of Health and Human Services 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 his or her 
        responsibilities under section 2601 of 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 of the Public Health 
Service Act, 42 U.S.C. 263a.
    ``(b) Employee Charges Charging Unlawful Discharge or 
Discrimination; Investigation; Order.--
            ``(1) Charge.--An employee who believes that he or she has 
        been discharged or otherwise discriminated against by an 
        employer in violation of this title may, not later than 30 days 
        after such alleged violation occurs, file (or have any 
        individual file on behalf of such employee) a charge with the 
        Secretary of Labor (hereinafter referred to in this subsection 
        as the `Secretary') alleging that such discharge or 
        discrimination violates the provisions of this title. On 
        receipt of such charge, the Secretary shall notify in writing 
        the employer named in the charge of such filing.
            ``(2) Investigation.--On receipt of a charge filed under 
        paragraph (1), the Secretary shall conduct an investigation of 
        the violation alleged in such charge. Not later than 30 days 
        after the receipt of such charge, the Secretary shall complete 
        such investigation and shall notify in writing the charging 
        party and the employer named in the charge (and any individual 
        acting on behalf of the employer) as to the results of such 
        investigation.
            ``(3) Order.--Not later than 60 days after the completion 
        of an investigation conducted pursuant to this section, the 
        Secretary shall, unless the proceeding on the charge 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 providing or denying 
        the relief prescribed in this section.
            ``(4) 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.
            ``(5) Review of order.--An employee or employer adversely 
        affected or aggrieved by an order issued under paragraph (3) 
        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 (3). 
        Review by the Court of Appeals shall conform to chapter 7 of 
        title 5, United States Code.
            ``(6) Failure to comply.--If a party fails to comply with a 
        final order issued pursuant to paragraph (3), the Secretary may 
        file a civil action to enforce such order in the United States 
        court for the district in which the violation was found to 
        occur. 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.
            ``(7) Rules and regulations.--The Secretary of Labor may 
        issue such rules and regulations as may be necessary to carry 
        out his or her responsibilities under section 2601(b).
    ``(c) Exclusivity of Remedies.--The rights and remedies provided 
for in this section shall be the exclusive enforcement rights and 
remedies for any violation of this title.
    ``(d) 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 charge filed under 
subsection (b).
    ``(e) 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 section shall upon enactment of 
this title preempt any State or local law, rule, regulation, order, 
standard, or cause of action that applies to the private sector 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 
        this title;
            ``(3) the establishment, scope, or conducting of employee 
        or applicant drug testing programs;
            ``(4) the requirements applying to employer drug testing 
        policies or drug awareness programs; or
            ``(5) any other matter relating to this title.
    ``(b) Other Federal Laws.--Nothing in this title shall be construed 
to prohibit any Federal agency from issuing regulations with respect to 
drug and alcohol testing of private sector employees, including 
requirements for mandatory drug testing in specified circumstances, 
provided that compliance by an employer with the standards established 
under section 2601(c)(3) of this title applicable to scientific and 
technical procedures also shall constitute compliance with such Federal 
agency regulations to the extent that such regulations differ from the 
standards established under section 2601(c)(3).

``SEC. 2612. EFFECTIVE DATE.

    ``Unless otherwise specified, the provisions of this title shall 
become effective one year after the date of enactment of this title, 
except that the prohibition contained in section 2601(a) shall not take 
effect prior to 1 year after establishment of the certification program 
required under section 2601(b).

``SEC. 2613. SEPARABILITY OF PROVISIONS.

    ``If any provision of this title, or the application of such 
provision to any individual or circumstances, shall be held invalid, 
the remainder of this title, or the application of such title to 
individuals or circumstances other than those as to which it is held 
invalid, shall not be affected thereby.

``SEC. 2614. DEFINITIONS.

    ``As used in this title:
    ``(a) Applicant.--The term `applicant' means any individual who has 
submitted an application to an employer, whether written or oral, for 
employment with such employer.
    ``(b) Drug.--The term `drug' means any controlled substance listed 
in schedules I through V of the Controlled Substance Act, alcohol, 
steroids, and lawful prescription medications which are the subject of 
abuse.
    ``(c) 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.
    ``(d) 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, except that for purposes of this 
Act the term drug test does not include breath alcohol analysis;
    ``(e) Confirmatory Test.--The term `confirmatory test' means a 
second analytical procedure to identify the presence of a specific drug 
or metabolite which is independent of the initial test and which uses a 
different technique and chemical principle from that of the initial 
test in order to ensure reliability and accuracy.
    ``(f) Employee.--The term `employee' means an individual employed 
by an employer.
    ``(g) Employer.--The term `employer' means an individual, 
partnership, corporation, association, or other entity, that employs 
one or more employees, and that is engaged in an industry affecting 
commerce.
    ``(h) 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.
    ``(i) Medical Review Officer.--The term `medical review officer' 
means a licensed physician, registered nurse, or other individual who 
possesses the training and skills necessary to assess the documentation 
and results of a drug test and to identify illicit drug use.

``SEC. 2615. 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''.

                                 <all>

S 1303 IS----2