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.
 1-5           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.
4-12     (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.