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.