By Pitts H.B. No. 733 76R2841 CMR-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to mandatory drug testing before employment in a nursing 1-3 home or a home and community support services agency. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle H, Title 2, Health and Safety Code, is 1-6 amended by adding Chapter 167 to read as follows: 1-7 CHAPTER 167. DRUG TESTING OF EMPLOYEES 1-8 Sec. 167.001. DEFINITIONS. In this chapter: 1-9 (1) "Confirmation test" means a drug test that is 1-10 performed after a screening test and that is used to verify the 1-11 presence of a drug. 1-12 (2) "Confirmed positive result" means a confirmation 1-13 test result that indicates the presence of a drug in the tested 1-14 sample at a level that indicates abuse. 1-15 (3) "Drug" means: 1-16 (A) a controlled substance or controlled 1-17 substance analogue, as those terms are defined by Section 481.002, 1-18 Health and Safety Code; 1-19 (B) a dangerous drug, as defined by Section 1-20 483.001, Health and Safety Code; 1-21 (C) an abusable glue or aerosol paint, as 1-22 defined by Section 485.001, Health and Safety Code; or 1-23 (D) any similar substance the use of which is 1-24 regulated under state law. 2-1 (4) "Drug test" means any test procedure designed to 2-2 take and analyze body fluids or other body materials to detect the 2-3 presence of drugs. The term does not include a test designed to 2-4 determine blood-alcohol concentration levels from a sample of an 2-5 individual's breath. 2-6 (5) "Negative test result" means a drug test result 2-7 that indicates that: 2-8 (A) a drug is not present in the tested sample; 2-9 or 2-10 (B) a drug is present in the tested sample at a 2-11 level that does not indicate abuse. 2-12 (6) "Positive test result" means a drug test result 2-13 that indicates the presence of a drug in the tested sample at a 2-14 level that indicates abuse. 2-15 (7) "Screening test" means an initial test used as a 2-16 preliminary step to detect the presence of drugs. 2-17 Sec. 167.002. APPLICABILITY. This chapter applies only to 2-18 an employer who is required to establish a drug testing program 2-19 under this code or another law that references this chapter. 2-20 Sec. 167.003. ELEMENTS OF DRUG PROGRAM. (a) An employer 2-21 who establishes a drug testing program for applicants for 2-22 employment shall provide to each applicant a written statement that 2-23 includes: 2-24 (1) the particular test procedures to be used; 2-25 (2) a description in medical and common terminology of 2-26 the drugs to be screened that lists a representative sample of 2-27 over-the-counter medications and other substances that may result 3-1 in a positive test; and 3-2 (3) the consequences of a positive test result. 3-3 (b) An employer shall give each tested applicant an 3-4 opportunity to write a pretest statement regarding any factors that 3-5 may influence the test results. The statement shall be sealed by 3-6 the applicant before the test. The statement may be used by the 3-7 testing laboratory but may be disclosed to the employer only if 3-8 testing results in a confirmed positive result. 3-9 (c) An employer may not request or require that a blood 3-10 sample be drawn for the purpose of administering a drug test. 3-11 (d) An employer, or anyone acting in the interest of the 3-12 employer, may not observe, either directly or indirectly, an 3-13 applicant in the process of producing a urine specimen. 3-14 (e) An employer and the testing laboratory that performs the 3-15 drug test shall establish a coordinated chain of custody procedure 3-16 for sample collection and testing that verifies the identity of 3-17 each sample and test result. The employer shall use a laboratory 3-18 accredited for drug testing by the National Institute on Drug Abuse 3-19 or a similar nationally recognized organization. 3-20 (f) The laboratory that performs the test shall conduct a 3-21 screening test through any combination of methods that are approved 3-22 by board rule and that use immuno-chemical technology or 3-23 chromatography. The laboratory shall perform a confirmation test 3-24 on any sample that has an initial positive test result by testing 3-25 the sample through a gas chromatography-mass spectrometry 3-26 methodology or a methodology at least as reliable and that provides 3-27 quantitative information about the detected drug metabolites, using 4-1 detection levels approved by the federal government for the testing 4-2 of federal employees or contractors. 4-3 (g) The employer shall provide the tested person with an 4-4 opportunity, at the person's request and expense, to submit a blood 4-5 sample at the time the urine sample is submitted and to have the 4-6 blood sample preserved in a method that allows the sample to be 4-7 tested later for the presence of drugs. 4-8 (h) Each notice required by this section must be translated 4-9 into the applicant's native language and provided to the applicant 4-10 in English and in translation. 4-11 Sec. 167.004. REPORTING AND SAMPLE RETENTION REQUIREMENTS. 4-12 (a) If both the screening test and the confirmation test are 4-13 positive for that drug, the employer shall require that the 4-14 laboratory performing the drug test mail to the employer and the 4-15 applicant at the applicant's last known address a statement that a 4-16 urine sample is positive for the drug detected. The notification 4-17 must be in writing and must include: 4-18 (1) the name of the tested applicant; 4-19 (2) the type of test conducted for both the screening 4-20 test and the confirmation test; 4-21 (3) the results of each test; 4-22 (4) the cutoff or measure used to distinguish positive 4-23 and negative samples on both the screening test and the 4-24 confirmation procedures; 4-25 (5) the name and address of the laboratory; and 4-26 (6) any other information provided by the laboratory 4-27 to the employer related to the tests. 5-1 (b) The employer shall require and the laboratory shall 5-2 ensure that a portion of any sample testing positive is preserved 5-3 in a manner that permits accurate retesting for not less than 90 5-4 days after the date on which the tested person receives the test 5-5 result. The employer shall provide each applicant who has a 5-6 positive test result an opportunity to retest a portion of the 5-7 sample at an independent laboratory at the applicant's expense. 5-8 Sec. 167.005. CONFIDENTIALITY; NO LIABILITY. (a) Any 5-9 information relating to the results of drug testing performed under 5-10 this chapter are confidential and may not be released to any person 5-11 except the employer and the tested applicant. A drug test result 5-12 may not be obtained by court order or process unless: 5-13 (1) the affected applicant voluntarily signs a written 5-14 consent form; or 5-15 (2) a release is compelled by a court in connection 5-16 with an action brought under Section 167.006. 5-17 (b) If information about drug test results is released in 5-18 violation of this section, the information is inadmissible as 5-19 evidence in a judicial or quasi-judicial proceeding, other than a 5-20 proceeding brought in a court in connection with an action under 5-21 this chapter. 5-22 (c) An employer who establishes a drug testing program under 5-23 this chapter is not liable: 5-24 (1) for failure to test for any specific substance, 5-25 disease, defect, or abnormality; 5-26 (2) for failure to detect any specific substance, 5-27 disease, infectious agent, virus, defect, or abnormality; or 6-1 (3) because the drug testing program is terminated or 6-2 suspended. 6-3 Sec. 167.006. REMEDIES. (a) In addition to any other 6-4 remedies provided by law, an employer or laboratory that violates 6-5 this chapter is liable to an applicant for any damages allowable by 6-6 law. 6-7 (b) A court may award reasonable attorney's fees and court 6-8 costs for a suit based on a violation of this chapter: 6-9 (1) to an applicant if the court determines that the 6-10 employer or laboratory knowingly or recklessly violated this 6-11 chapter; or 6-12 (2) to the defendant if the court determines that the 6-13 suit was groundless and brought in bad faith or brought for the 6-14 purpose of harassment. 6-15 Sec. 167.007. RULES. The board may adopt rules governing 6-16 drug testing programs established under this chapter. 6-17 SECTION 2. Subchapter A, Chapter 142, Health and Safety 6-18 Code, is amended by adding Section 142.007 to read as follows: 6-19 Sec. 142.007. MANDATORY DRUG TESTING. (a) An agency 6-20 licensed under this chapter shall establish a drug testing program 6-21 under Chapter 167 and shall require each applicant for employment 6-22 with the agency to submit to a drug test in accordance with that 6-23 chapter. 6-24 (b) The agency may not extend an offer of employment to an 6-25 applicant whose drug test returns a confirmed positive result. 6-26 (c) The department shall act as the employer under Chapter 6-27 167 with respect to an individual who is licensed as a home and 7-1 community support services agency and who personally provides home 7-2 health services. 7-3 SECTION 3. Subchapter B, Chapter 242, Health and Safety 7-4 Code, is amended by adding Section 242.0371 to read as follows: 7-5 Sec. 242.0371. MANDATORY DRUG TESTING. (a) Any institution 7-6 licensed under this chapter shall establish a drug testing program 7-7 under Chapter 167 and shall require all applicants for employment 7-8 to submit to a drug test in accordance with that chapter. 7-9 (b) The institution may not extend an offer of employment to 7-10 an applicant whose drug test returns a confirmed positive result. 7-11 SECTION 4. (a) This Act takes effect September 1, 1999. 7-12 (b) A drug testing program may not be established under 7-13 Chapter 167, Health and Safety Code, as added by this Act, before 7-14 January 1, 2000. A drug testing program established by a home and 7-15 community support services agency licensed under Chapter 142, 7-16 Health and Safety Code, or an institution licensed under Chapter 7-17 242, Health and Safety Code, before January 1, 2000, must conform 7-18 to Chapter 167, Health and Safety Code, as added by this Act, not 7-19 later than March 1, 2000. 7-20 (c) The Texas Board of Health shall adopt rules relating to 7-21 drug testing screening tests under Chapter 167, Health and Safety 7-22 Code, as added by this Act, not later than December 1, 1999. 7-23 (d) Sections 142.007 and 242.0371, Health and Safety Code, 7-24 as added by this Act, apply only to a person who applies on or 7-25 after January 1, 2000, for employment with a home and community 7-26 support services agency licensed under Chapter 142, Health and 7-27 Safety Code, or an institution licensed under Chapter 242, Health 8-1 and Safety Code. A person who applies before September 1, 2000, for 8-2 employment is governed by the law in effect on the date the person 8-3 applied for employment, and the former law continues in effect for 8-4 that purpose. A person who applies on or after September 1, 1999, 8-5 and before January 1, 2000, for employment is governed by the law 8-6 in effect immediately before the effective date of this Act, and 8-7 the former law is continued in effect for that purpose. 8-8 SECTION 5. The importance of this legislation and the 8-9 crowded condition of the calendars in both houses create an 8-10 emergency and an imperative public necessity that the 8-11 constitutional rule requiring bills to be read on three several 8-12 days in each house be suspended, and this rule is hereby suspended.