§ 514. Administration of tests

An employer may request an applicant for employment or an employee to submit to a drug test pursuant to this subchapter, provided the drug testing is performed in compliance with all the following requirements:

(1) Drugs to be tested. The test shall be administered only to detect the presence of alcohol or drugs, as defined in subdivision 511(3) of this title, at nontherapeutic levels.

(2) Written policy. The employer shall provide all persons tested with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test and the consequences of a positive test result. The employer's policy shall incorporate all provisions of this section.

(3) Blood samples. An employer may not request or require that a blood sample be drawn for the purpose of administering a drug test.

(4) Designated laboratory. The employer shall use only a laboratory designated by the Department of Health.

(5) Chain of custody. The collector shall establish a chain of custody procedure for both sample collection and testing that will assure the anonymity of the individual being tested and verify the identity of each sample and test result.

(6) Urinalysis procedure. If a urinalysis procedure is used to screen for drugs, the employer shall:

(A) require the laboratory performing the test to confirm any sample that tests positive by testing the sample by gas chromatography with mass spectrometry or an equivalent scientifically accepted method that provides quantitative data about the detected drug or drug metabolites; and

(B) provide the person tested with an opportunity, at his or her request and expense, to have a blood sample drawn at the time the urine sample is provided, and preserved in such a way that it can be tested later for the presence of drugs.

(7) Laboratory reports. A laboratory may report that a urine sample is positive only if both the initial test and confirmation test are positive for the particular drug. Test results shall only be provided by written report in accordance with subdivision (9) of this section.

(8) Negative test results. The detection of a drug at a therapeutic level as defined by the Commissioner of Health shall be reported as a negative test result. The laboratory's report shall not contain any information indicating the presence of a drug at a therapeutic level as defined by the Commissioner.

(9) Information to be supplied. The laboratory shall provide the medical review officer with a written report of the drug test result. The medical review officer shall review the report, and discuss the results and options available with the individual tested. The written report shall include all of the following information:

(A) the unique identifier code of the person tested;

(B) the type of test conducted for both initial screening and confirmation;

(C) the results of each test;

(D) the detection level, meaning the cut-off or measure used to distinguish positive and negative samples, on both the initial screening and confirmation procedures;

(E) the name and address of the laboratory; and

(F) any other information provided by the laboratory concerning that person's test.

(10) Preservation of samples. The collector shall ensure that a portion of any positive sample is preserved in a condition that will permit accurate retesting for a period of not less than 90 days after the person tested receives the result.

(11) Medical review officer. The employer shall contract with or employ a certified medical review officer who shall be a licensed physician with knowledge of the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs. The medical review officer shall review and evaluate all drug test results, assure compliance with this section and sections 515 and 516 of this title, report the results of all tests to the individual tested, and report only confirmed drug test results to the employer.

(12) Collector. The employer shall designate a collector to collect specimens from job applicants and employees. The collector may be an employee for the purposes of collecting specimens from job applicants. The collector may not be an employee for the purposes of collecting specimens from employees for drug testing based on probable cause. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 3, eff. May 1, 2002.)