Senate Bill No. 371-Committee on Commerce and Labor
May 7, 1997
____________
Referred to Committee on Commerce and Labor
SUMMARY--Provides for testing of employees and applicants for employment for drugs and alcohol. (BDR 53-804)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to employment; expressly authorizing an employer to establish a program for testing employees and applicants for employment for abuse of certain substances; providing standards for that testing; providing a discount from premiums for industrial insurance for establishing such a program; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 Chapter 613 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 25, inclusive, of this act.
Sec. 2 As used in sections 2 to 25, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 to 7, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3 "Alcohol" means ethyl alcohol that is present in a quantity of one-half percent or more by volume in any beverage.
Sec. 4 "Applicant" means a person who applies for employment.
Sec. 5 "Bureau" means the bureau of alcohol and drug abuse in the rehabilitation division of the department of employment, training and rehabilitation.
Sec. 6 "Drug" means a controlled substance listed in schedule I or II pursuant to chapter 453 of NRS.
Sec. 7 "Program" means a program established pursuant to section 8 of this act.
Sec. 8 In addition to any other arrangement permitted by contract or at common law, an employer may establish a program to eliminate the abuse of alcohol and drugs by his employees in accordance with the provisions of sections 2 to 25, inclusive, of this act.
Sec. 9 An employer who establishes a program shall adopt a written statement of policy to carry out the program. The policy must:
1. Require notice to be given to employees that using or being under the influence of alcohol during working hours is prohibited;
2. Require notice to be given to employees that the use, purchase, possession or transfer of drugs is prohibited but that the use of medication is not prohibited if the use is in accordance with a lawful prescription or consistent with standard recommendations for dosage;
3. Identify the types of testing an employee or applicant may be required to undergo to determine the presence of alcohol or a drug in his system and the basis used to determine when such a test is required;
4. Identify the actions the employer may take against an employee or applicant if a confirmed test shows the presence of alcohol or a drug in his system;
5. Inform employees and applicants of the existence of sections 2 to 25, inclusive, of this act;
6. Explain generally the provisions for confidentiality set forth in section 25 of this act;
7. Identify the consequences of refusing to undergo a test to determine the presence of alcohol or a drug in an employee's or applicant's system;
8. Inform employees of the employee assistance program that is available;
9. Inform employees and applicants of the opportunity to contest or explain an unfavorable result of a test to the employer;
10. Require notice to be given to employees that the employer may discipline an employee for failure to report an injury arising out of and in the course of his employment; and
11. Inform employees and applicants of the provisions of the federal Drug-Free Workplace Act of 1988 (41 U.S.C. §§ 701 et seq.), if applicable to the employer.
Sec. 10 1. An employer who establishes a program, but who does not regularly test for the presence of alcohol or drugs in his employees, shall give a general notice of future testing to his employees at least 60 days before the tests begin.
2. An employer shall give notice concerning testing to all applicants.
3. A notice of the policy concerning testing must be posted in an appropriate and conspicuous location on the employer's premises, and copies of the policy must be made available for inspection by employees and applicants during regular business hours in the employer's personnel office or other suitable locations.
4. If an employer has in his employ employees or applicants who have difficulty communicating in English, the employer shall make reasonable efforts to assist those employees and applicants to understand the policy.
5. An employee or applicant whose confirmed test shows the presence of alcohol or a drug may contest the result or explain it to the employer within 5 working days after receiving written notice of the result.
Sec. 11 In conducting testing pursuant to sections 2 to 25, inclusive, of this act, an employer shall comply with the standards and procedures established in sections 2 to 25, inclusive, of this act and all applicable regulations adopted by the bureau and shall:
1. Require an applicant to undergo a test for the presence of drugs in his system if employment is offered. If an applicant refuses to undergo the test or a confirmed test shows the presence of a drug, the employer may refuse to hire the applicant.
2. Investigate each injury to an employee arising out of and in the course of employment that requires the employee to seek medical attention off the premises and require the employee to undergo testing to determine the presence of alcohol or a drug in the employee's system if the employer reasonably believes the employee has caused or contributed to the injury. An employer need not require an employee to undergo testing if a supervisor, trained in accordance with section 24 of this act, reasonably believes that the injury was because of the inexperience of the employee, a defective or unsafe product or working condition, or other circumstances beyond the control of the employee. If the first confirmed test shows the presence of alcohol or a drug in the employee's system, it is not a basis for discharging the employee pursuant to sections 2 to 25, inclusive, of this act.
Sec. 12 1. If an employee is referred to an employee assistance program by the employer as a result of a confirmed test showing the presence of alcohol or a drug in the employee's system or an incident involving alcohol or drugs in violation of the employer's rules, the employer shall require the employee to undergo testing in conjunction with any recommended rehabilitation. If the person in charge of the employee assistance program determines that the employee does not require treatment, the employee must be required to undergo testing for recurrence. If an employee voluntarily requests assistance, without a confirmed test or a violation of any rule, testing for recurrence is not required.
2. If testing for recurrence is conducted, the testing must be performed at least four times a year for 2 years after completion of rehabilitation, and advance notice of the date of testing may not be given.
3. In the absence of extenuating circumstances, an employee must be discharged if a confirmed test for recurrence shows the presence of alcohol or a drug in his system.
Sec. 13 1. Testing and the collection of specimens for testing must be performed in accordance with regulations and procedures approved by the United States Department of Health and Human Services and regulations of the United States Department of Transportation for testing for marihuana, cocaine, amphetamines, opiates and phencyclidine. An employer who establishes a program may test for any drug.
2. A specimen must be collected with due regard for the privacy of the person providing the specimen and in a manner reasonably calculated to prevent substitution or contamination of the specimen.
3. Collection and analysis of specimens must be documented. The procedure for documentation must include:
(a) Labeling containers of specimens so as reasonably to preclude the likelihood of erroneous identification of results of testing; and
(b) An opportunity for the employee or applicant to provide to a medical reviewing officer information the employee or applicant considers relevant to the test, including identification of currently or recently used medication or other relevant medical information.
4. Collection, storage and transportation of specimens to the place of testing must be performed in a manner that reasonably precludes contamination or adulteration of specimens.
Sec. 14 A specimen for a test to determine the presence of alcohol or a drug in an employee's or applicant's system may be taken or collected by:
1. A physician, a physician's assistant, a registered nurse, a licensed practical nurse, an advanced practitioner of nursing or an emergency medical technician who is present for the purpose of rendering emergency medical service or treatment;
2. A qualified person certified or employed by a laboratory certified by the bureau or the College of American Pathologists; or
3. A qualified person certified or employed by an agency that is in the business of collecting specimens using procedures adopted for alcohol by the United States Department of Health and Human Services and the United States Department of Transportation.
Sec. 15 1. A laboratory may not analyze a specimen for an initial or confirming test to determine the presence of drugs unless the laboratory:
(a) Is approved by the bureau or the College of American Pathologists or a successor organization;
(b) Has written procedures to ensure the chain of custody of the specimens; and
(c) Follows proper procedures to control quality.
2. The procedures to control quality must include:
(a) The use of internal controls of quality, including the use of samples of known concentrations to check the performance and calibration of testing equipment, and periodic use of blind samples for overall accuracy;
(b) An internal process of review and certification for results of testing, conducted by a person qualified to perform that function in the testing laboratory;
(c) Measures carried out by the testing laboratory to preclude adulteration of specimens and results of testing; and
(d) Other necessary and proper actions taken to ensure reliable and accurate results of testing.
Sec. 16 1. A laboratory shall report the result of a test to determine the presence of drugs to an employer in writing within 7 working days after receipt of a specimen. The report must include, without limitation:
(a) The name and address of the laboratory that performed the test and the identification of the person tested;
(b) Results showing the presence of a drug on confirming tests only, or negative results, as the case may be;
(c) A list of the drugs for which analyses were conducted; and
(d) The type of tests conducted, for both initial and confirming tests, and the threshold level of detection for each test.
2. A report may not disclose the presence or absence of a substance other than a drug.
Sec. 17 1. Within 5 working days after receipt of a report of a confirmed test showing the presence of a drug from a laboratory, an employer shall inform the employee or applicant who was tested, in writing, of the result, the consequences of the result and the choices available to the employee or applicant.
2. The employer shall provide to the employee or applicant, upon request, a copy of the result of the test.
Sec. 18 1. A laboratory shall provide technical assistance through the use of a medical reviewing officer to an employer, employee or applicant in interpreting a confirmed test showing the presence of a drug that could have been caused by medication taken by the employee or applicant. The medical reviewing officer shall interpret and evaluate the laboratory's result and eliminate results that could have been caused by prescribed medication or other medically documented sources in accordance with the United States Department of Health and Human Services' manual for medical reviewing officers.
2. A medical reviewing officer must be a licensed physician trained in the field of testing for drugs.
Sec. 19 An initial test showing the presence of a drug must be confirmed by a test using gas chromatography or mass spectrometry or an equivalent or more accurate scientifically accepted method approved by the bureau as the technology becomes available in a cost-effective manner. An initial test showing the presence of alcohol may be confirmed by these methods or by a second test of the employee's breath.
Sec. 20 1. An employer who requires testing pursuant to sections 2 to 25, inclusive, of this act or collects specimens for testing shall regulate the chain of custody to ensure proper recordkeeping, handling, labeling and identification of all specimens to be tested.
2. An employer shall pay the cost of all tests to determine the presence of alcohol or drugs, initial and confirming, that he requires of employees and applicants.
3. An employee or applicant shall pay the cost of any additional tests not required by the employer.
Sec. 21 1. An employer who establishes a program shall provide an employee assistance program for employees who are experiencing problems related to alcohol or drugs, marital problems, or legal or financial problems.
2. To ensure appropriate assessment and referral to treatment, the employer shall:
(a) Notify the employees of the benefits and services provided as assistance;
(b) Post notice of the availability of assistance in conspicuous locations on the employer's premises and explore alternative means of publicizing the services; and
(c) Provide each employee with notice of the policies and procedures regarding access to and use of the assistance that is available.
3. The bureau shall provide to each employer a list of approved methods of providing assistance to employees.
Sec. 22 1. After a first confirmed test showing the presence of alcohol or a drug, an employee whose employer has established a program must be given an opportunity to keep his employment by entering into a final agreement with the employer. The agreement must require the employee to:
(a) Submit to an evaluation for chemical dependency;
(b) Comply with any recommendations for treatment;
(c) Undergo further testing for the presence of alcohol or drugs for 2 years;
(d) Comply with the same standards of performance and conduct that are applicable to other employees; and
(e) Authorize the employer to receive all relevant information regarding the employee's progress in treatment, if applicable.
2. If treatment for abuse of alcohol or drugs is necessary, an employee shall use services approved by the bureau which provide continuing care for at least 2 years.
3. The person in charge of the employee assistance program shall monitor the employee's progress while in treatment, including the continuing care, and notify the employer if an employee is not complying with the recommendations for treatment.
Sec. 23 1. An employer who establishes a program may discharge an employee for:
(a) Refusing to submit to a test to determine the presence of alcohol or drugs in the employee's system;
(b) Refusing to agree to or failing to comply with the conditions of a final agreement required by section 22 of this act;
(c) A second confirmed test showing the presence of alcohol or drugs in the employee's system; or
(d) After the first confirmed test showing the presence of alcohol or drugs in his system, any violation of the employer's rules pertaining to alcohol and drugs.
2. The provisions of sections 2 to 25, inclusive, of this act do not limit the right of an employer who establishes a program to discharge an employee for any other lawful reason.
Sec. 24 1. As part of a program, an employer shall provide all employees with an annual educational course on the abuse of alcohol and drugs, in general, and the effects of such abuse on the workplace, specifically. If an employer has in his employ employees who have difficulty communicating in English, the employer shall make reasonable efforts to assist those employees to understand the substance of the educational course.
2. An educational course must last at least 1 hour and include:
(a) An explanation of addiction to alcohol and drugs considered as a disease;
(b) The effects and dangers of commonly abused substances in the workplace; and
(c) The employer's policies and procedures regarding abuse of alcohol and drugs in the workplace and how employees who wish to obtain treatment for abuse can do so.
3. An employer shall provide all supervisory personnel with a minimum of 2 hours of supervisors' training, which must include, without limitation:
(a) How to recognize signs of abuse of alcohol and drugs by employees;
(b) How to record and corroborate evidence of such abuse;
(c) How to refer employees to assistance or proper treatment; and
(d) The circumstances and procedures for testing an employee after he sustains an injury arising out of and in the course of his employment.
Sec. 25 1. Except as otherwise provided in this section:
(a) Information, interviews, reports, statements, memoranda and results of testing, written or otherwise, received through a program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in a civil or administrative proceeding.
(b) An employer, laboratory, medical reviewing officer or person in charge of an employee assistance program, and their agents, who receive or have access to information concerning results of testing shall keep the information confidential.
2. Any release of such information must be pursuant to a written consent signed voluntarily by the person tested, unless the release is compelled by the bureau or a court of competent jurisdiction in accordance with state and federal law or unless required by a professional or occupational licensing board in a related disciplinary proceeding. Any disclosure by an agency approved by the bureau must be limited to securing the safety of employees or members of the general public. The consent must contain, without limitation:
(a) The name of the person who is authorized to obtain the information;
(b) The purpose of the disclosure;
(c) The precise information to be disclosed;
(d) The duration of the consent; and
(e) The signature of the person authorizing the release of the information.
3. Information on results of testing may not be released or used in a criminal proceeding against an employee or applicant. Information released in violation of this subsection is inadmissible as evidence in a criminal proceeding.
4. The provisions of sections 2 to 25, inclusive, of this act do not prohibit:
(a) An employer from using information concerning an employee's or applicant's results in a lawful manner with respect to the employee or applicant; or
(b) A person who obtains the information from disclosing or using the information in a lawful manner as part of a matter relating to the test, the result or an employer's action with respect to the applicant or employee.
Sec. 26 Chapter 616B of NRS is hereby amended by adding thereto a new section to read as follows:
An insurer shall provide to an employer who:
1. Establishes a program before, on or after July 1, 1997, which meets the standards of sections 2 to 25, inclusive, of this act; and
2. Provides health insurance to his employees which provides at least the basic coverage set forth in chapter 689C of NRS,
a discount of 5 percent from the premiums required to be paid to provide, secure and maintain compensation as required by the terms of chapters 616A to 617, inclusive, of NRS. To receive the discount, the program must have been approved for that year by the bureau of alcohol and drug abuse in the rehabilitation division of the department of employment, training and rehabilitation.
Sec. 27 Chapter 284 of NRS is hereby amended by adding thereto a new section to read as follows:
The provisions of NRS 284.406 to 284.407, inclusive, do not apply to an appointing authority that establishes a program to eliminate the abuse of alcohol and drugs by its employees pursuant to sections 2 to 25, inclusive, of this act.
Sec. 28 NRS 284.4061 is hereby amended to read as follows:
284.4061 As used in NRS 284.406 to 284.407, inclusive, and section 27 of this act, unless the context otherwise requires:
1. "Employee" means a person in the classified service of the state, except:
(a) Officers and members of the Nevada National Guard;
(b) Persons engaged in public work for the state but employed by contractors when the performance of the contract is authorized by the legislature or another competent authority; and
(c) Patient and inmate help in state charitable, penal, mental and correctional institutions.
2. "Screening test" means a test of a person's:
(a) Breath or blood to detect the general presence of alcohol; or
(b) Urine to detect the general presence of a controlled substance or any other drug,
which could impair that person's ability to perform the duties of employment safely and efficiently.
Sec. 29 NRS 458.110 is hereby amended to read as follows:
458.110In addition to the activities set forth in NRS 458.025 to 458.115, inclusive, the bureau may engage in any activity necessary to effectuate the purposes of this chapter [.] and sections 2 to 26, inclusive, of this act.
Sec. 30 This act becomes effective on July 1, 1997.