[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1706 Introduced in House (IH)]







104th CONGRESS
  1st Session
                                H. R. 1706

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 24, 1995

 Mr. Solomon introduced the following bill; which was referred to the 
Committee on Commerce, and in addition to the Committee on Economic and 
 Educational Opportunities, for a period to be subsequently determined 
 by the Speaker, in each case for consideration of such provisions as 
        fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Public Health Service Act to establish Federal standards 
   to ensure quality assurance of drug testing programs for private 
                   employers, 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 Drug Testing 
Act''.

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. QUALITY ASSURANCE IN DRUG TESTING.

    The Public Health Service Act (42 U.S.C. 201 et seq.) is amended by 
adding at the end the following new title:

            ``TITLE XXVII--QUALITY ASSURANCE IN DRUG TESTING

``SEC. 2701. LABORATORY CERTIFICATION STANDARDS.

    ``(a) Prohibition.--No individual may perform a toxicological 
analysis, for purposes of confirming a drug-testing screen positive, 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 drug 
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. 2702. 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. 2703. 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. 2704. 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, or has otherwise violated the employer's substance-abuse 
        prevention policy,
            ``(2) where such test is administered as part of a routine 
        scheduled or periodic 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 or environmental 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) pursuant to a random drug testing program whereby all 
        employees subject to random drug testing have an equal chance 
        of initial selection and are selected according to a method of 
        selection which is neutral and nondiscriminatory in nature, and 
        that all employees in the work unit covered by the random drug-
        testing policy are included in the testing program.

``SEC. 2705. 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 employer,
            ``(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 the 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. If the confirmatory test of such employee is 
positive, and the employee is in a sensitive position wherein an 
accident could cause loss of human life, serious bodily injury, or 
significant property or environmental damage, the employer may 
permanently remove the employee from the sensitive position and 
transfer or reassign the employee to an available nonsensitive position 
with comparable pay and benefits, or may take other action, including 
termination or other adverse employment action, consistent with the 
employer's policy for drug-test positives for employees in sensitive 
positions, provided there are not applicable contractual provisions 
that expressly prohibit such action.

``SEC. 2706. 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 
        representatives 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. 2707. 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, adulterates, or substitutes for, or 
        attempts to tamper with, adulterate, or substitute for 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, adulterated, or 
substituted for, or attempted to tamper with, adulterate, or substitute 
for a drug test specimen.

``SEC. 2708. DRUG ABUSE TREATMENT PROGRAMS.

    ``As part of the drug-free awareness program established pursuant 
to section 2703, 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. 2709. 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 drug analysis 
        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. 2710. ENFORCEMENT AND RELIEF.

    ``(a) Laboratory Certification Standards.--The certification 
program established pursuant to section 2701(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 employer and its designated 
        representatives 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) Employer Protection From Litigation.--No cause of action is 
or shall be established under this title for any person against an 
employer who has established a policy and initiated a drug testing 
program in accordance with this title, for any of the following:
            ``(1) Actions in good faith based on the results of a 
        `positive' drug test.
            ``(2) Failure to test for drugs, or failure to test for a 
        specific drug or other controlled substance.
            ``(3) Failure to test for, or if tested for, failure to 
        detect, any specific drug or other substance, any medical 
        condition, or any mental, emotional, or psychological disorder 
        or condition.
            ``(4) Termination or suspension of any substance abuse 
        prevention or testing program or policy.
    ``(d) Causes of Action Based on Test Results.--
            ``(1) No cause of action is or shall be established for any 
        person against an employer who has established a program of 
        drug testing in accordance with this title, unless the 
        employer's action was based on a `false positive' drug-test 
        result, and the employer knew or clearly should have known that 
        the result was in error, and ignored the true test result 
        because of reckless, malicious, or negligent disregard for the 
        truth and/or the willful intent to deceive or be deceived.
            ``(2) In any claim, including a claim under this title, 
        where it is alleged that an employer's action was based on a 
        `false positive' test result--
                    ``(A) there is a rebuttable presumption that the 
                test result was valid if the employer complied with the 
                provisions of this title; and
                    ``(B) the employer is not liable for monetary 
                damages if its reliance on a `false positive' test 
                result was reasonable and in good faith.
            ``(3) There is no employer liability for any action taken 
        related to a `false negative' drug test.
    ``(e) Limits to Defamation Causes of Action.--No cause of action 
for defamation of character, libel, slander, or damage to reputation is 
or shall be established for any person against an employer who has 
established a program of drug testing in accordance with this title, 
unless--
            ``(1) the results of that test were disclosed to a person 
        other than the employer, an authorized employee, agent, or 
        representative of the employer, the tested employee, or the 
        tested prospective employee, or the authorized agent or 
        representative of the employee;
            ``(2) the information disclosed was a `false positive' test 
        result;
            ``(3) the `false positive' test result was disclosed with 
        negligence; and
            ``(4) all elements of an action for defamation of 
        character, libel, slander, or damage to reputation as 
        established by applicable statute or common law, are satisfied.
    ``(f) 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. 2711. EFFECT ON OTHER LAWS.

    ``(a) State Law.--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 Departments of Transportation, Energy, or Defense, or 
the Nuclear Regulatory Commission, or other Federal agencies with 
authority over regulated industries or government contractors from 
issuing regulations with respect to drug and alcohol testing. This 
title shall preempt any Federal law, rule, regulation, order, or 
standard that applies to the continued employment or reemployment in a 
sensitive position of a recovering drug addict or chronic drug abuser, 
or the reinstatement or rehiring of any employee in a sensitive 
position for whom an employer has administered a drug-test consistent 
with this title that has produced a confirmed positive drug-test 
result.

``SEC. 2712. EFFECTIVE DATE.

    ``This title shall become effective 1 year after the date of 
enactment of this title, and the prohibition contained in section 
2701(a) shall not take effect less than 1 year after establishment of 
the certification program required under section 2701(b).

``SEC. 2713. 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) Drug testing program.--The term `drug testing 
        program' means a drug testing program established by an 
        employer.
            ``(6) Employee.--The term `employee' means an individual 
        employed by an employer.
            ``(7) Employer.--The term `employer' means an individual, 
        partnership, corporation, association, or other nongovernmental 
        entity that employs one or more employees, and that is engaged 
        in an industry affecting commerce.
            ``(8) 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, safety, environment, 
        or other responsibilities requiring a high degree of trust and 
        confidence.

``SEC. 2714. PROFESSIONAL ATHLETES.

    ``For purposes of this title, professional athletes may be treated 
in the same manner as employees who meet the definition of section 
2714(g), except that professional athletes shall not be covered by 
section 2706(a).''.
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