Pare, Edward D., Jr.

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1996 Survey of Rhode Island Law: Legislation: Labor Relations. An Act Relating To Labor and Labor Relations - Drug Testing

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Roger Williams University Law ReviewVolume 2 | Issue 2 Article 23Spring 19971996 Survey of Rhode Island Law: Legislation:Labor Relations. An Act Relating To Labor andLabor Relations - Drug TestingEdward D. Pare Jr.Roger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Survey of Rhode Island Law is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion inRoger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPare, Edward D. Jr. (1997) "1996 Survey of Rhode Island Law: Legislation: Labor Relations. An Act Relating To Labor and LaborRelations - Drug Testing," Roger Williams University Law Review: Vol. 2: Iss. 2, Article 23.Available at: http://docs.rwu.edu/rwu_LR/vol2/iss2/23528 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:528Labor Relations. An Act Relating To Labor and Labor Rela-tions-Drug Testing. Provides for drug testing by employersunder certain circumstances; for employee privacy; penalties for vi-olating the statute; and the requisite standards for controlled sub-stance testing required or requested by the employer. Alsoprovides that employees who test positive for controlled substancesshall not be terminated on that basis, but instead referred to a sub-stance abuse professional. Effective, August 2, 1996. 1996 R.I.Pub. Laws chs. 136, 242.This legislation (the Act) amends existing provisions under thelabor statutes and labor relations statutes relating to drug testingof employees.1 The stated purpose of the Act is to provide a balanc-ing mechanism between the problems of substance abuse in theworkplace and the public policy of safeguarding a person's right toprivacy while at work.2 The Act is intended to provide for the pro-tection of the public, workplace safety, and the privacy and dignityof the employee through the use of confidential and scientificallyreliable drug testing2 The Act amends section 28-6.5-1 of theRhode Island General Laws entitled, "Urine and blood testing gen-erally prohibited,"4 to "Testing permitted only in accordance withthis section,"5 apparently signaling a change from a presumptivelyprohibitive statutory provision to one that is presumptively per-missive. Prior to the amendments, an employer could only requiredrug testing if there were reasonable grounds to believe, basedupon specific objective facts, that the employee's use of a controlledsubstance was impairing his or her performance. 6 The Act deletesthe requirement of "specific objective facts"7 and replaces it with arequirement of "reasonable grounds... based on specific aspects ofthe employee's job performance and on specific contemporaneousobservations, capable of being articulated, concerning the em-ployee's appearance, behavior or speech."81. R.lI. Gem Laws § 28-6.5-1 (1995 & Supp. 1996).2. 1996 R.I. Pub. Laws chs. 136, 242.3. Id4. R.I. Gen. Laws § 28-6.5-1 (1995 & Supp. 1996).5. Id.6. Id. § 28-6.5-1(a)(1).7. Id-8. Id.SURVEY SECTION'Under the Act an employee may not be terminated on the ba-sis of a positive test, but must be referred to a "substance abuseprofessional ... for assistance."9 In addition, employers who util-ize drug testing are required to have "a drug abuse prevention pol-icy" in place.10 The Act also mandates, with two exceptions, theconfidentiality of test results."3Certain important provisions were not amended by this Act.First, an employer must still have some reasonable basis for re-quiring an employee to undergo a drug test.12 The employee mustbe allowed to provide the test sample in private,' 3 and positivetests must be confirmed by specific tests chosen for scientific accu-racy. 14 Employees testing positive may request that the sample besent to an independent testing facility at the employer's expense,' 5and must be given "a reasonable opportunity to rebut or explainthe results."16Under both the prior and current statutory provisions, it con-stitutes a misdemeanor for an employer to subject an employee to adrug test beyond the provisions of the Act.' 7 Violations are pun-ishable by a fine of up to one thousand dollars and/or up to oneyear in jail.' 8 A civil action may also be brought for violations ofthe Act, and a court may award an employee actual damages, puni-tive damages, reasonable attorney's fees and costs, as well as pro-viding injunctive relief.19The Act does not change the prior exemptions for employeescovered under federal drug testing programs, nor does the Act pro-hibit employers in the public utility or mass transportation indus-tries from testing employees, where drug testing is mandated as a9. Id. § 28-6.5-1(a)(3) (Supp. 1996).10. IM § 28-6.5-1(a)(7).11. Id. § 28-6.5-1(a)(8). Under this provision, positive results may be releasedto another employee with a "job-related need to know," or may be used to defendagainst any legal action brought by the employee against the employer. Id.12. Id- § 28-6.5-1(a)(1) (1995 & Supp. 1996).13. Id. § 28-6.5-1(aX2).14. Id. § 28-6.5-1(a)(4). The confirmatory tests required by the Act are gaschromatography or mass spectrometry. However, the Act also allows for othermethods, if recognized as being at least as accurate. Id.15. id § 28-6.5-1(a)(5). The employer is required to advise the employee ofthis right. Id.16. Id. § 28-6.5-1(a)(6).17. Id. § 28-6.5-1(b).18. I&19. Id- § 28-6.5-1(c).19971 529530 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:528condition of receiving federal funds. 20 However, such testing mustcomply with the Act to the extent that it is not clearly inconsistentwith applicable federal law or regulation.2 'Edward D. Pare, Jr.20. Id. § 28-6.5-1(e).21. Id

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1996 Survey of Rhode Island Law: Legislation: Labor Relations. An Act Relating To Labor and Labor Relations - Drug Testing

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