Section 170-7-3 - REQUIREMENTS FOR EMPLOYERS' WRITTEN SUBSTANCE ABUSE POLICYA. Policy Format 1. Individual employer policies must be a single document) written in a manner that is understandable to a large majority of the employees and applicants. Provisions should be made within the policy for additional information or assistance to be made available to an employee or applicant, if requested.2. To facilitate prompt review of and action on individually submitted employer policies, a specific format is requested. Failure to comply with the requested format may result in the submission being returned without Department approval.3. The authorizing statute is very specific in many areas; therefore, it is required that the employer use both the statute and Department of Labor and Human Service's rules in developing a policy.4. The following outline should be used in developing a policy as a minimum standard. Employers are encouraged to write the policy as a narrative. The sections concerning probable cause testing of employees, random or arbitrary testing of employees, and testing of applicants are optional, but must be included if they are to be a part of the employer's substance abuse testing policy. a. Covered Establishment ii. Contact regarding substance abuse testing policy b. Scope of Testing i. Substances to be tested for: AA. Specify substances and specify for each as allowed by statute and Department of Human Services rules, 1 test procedure to be used and cut-off limit for positive screening test,2 test procedure to be used and cut-off limit for positive confirmation test.ii. Probable Cause Testing of Employees:AA. Classifications or position titles of employees that will be tested based on probable cause. An employer may elect to cover all employees under probable cause testing.BB. Classifications or position titles that may make a determination of probable cause.CC. Method by which determination will be communicated to the employee.iii. Random or Arbitrary Testing of Employees: AA. If the employer and the employees have negotiated an agreement covering random or arbitrary testing of employees, the policy shall so state that it is a product of a bargained agreement and Identify those classifications or position titles that are subject to random or arbitrary testing, as well as the procedure for selecting those individuals to be tested. The collective bargaining agreement or appropriate sections; must be attached to the submission as an exhibit.
BB. If the employer does not have a collective bargaining agreement which covers random or arbitrary testing, the policy must show: 1 Those classifications or position titles which are subject to random or arbitrary testing. a The policy must include for each classification or position title a concise statement as to why the work is of a nature which would create an unreasonable threat to the health or safety of the public or co-workers if the employee were under the influence of a substance of abuse. (NOTE: It is the stated statutory intent that this section be "narrowly construed.")
b A more complete description of each position and a full justification for random or arbitrary testing must be submitted as an attachment provided with the policy.2 The procedure for selecting those individuals to be tested.CC. An employer having 50 or more employees who are not covered by a collective bargaining agreement may establish a random. or arbitrary testing program which applies to all employees. The written policy with respect to the parts of the policy addressing the random or arbitrary testing program must meet the standards below. 1 The employer shall appoint a committee of employees to develop the random or arbitrary testing program. The committee must consist of: a at least 10 of the employer's employees from a cross-section of employees eligible to be tested; andb a medical professional trained in substance abuse testing procedures. If no such person is employed by the employer, the employer shall obtain the services of a person meeting these qualifications to serve on the committee.2 Selection of employees to be tested under the random or arbitrary testing program must be done as follows: a Selection of employees to be tested must be performed by a person or entity not subject to influence by the employer, such as a Medical Review Officer.b Selection must be from a list of all subject employees provided by the employer. The list may not contain information that would identify the employees to the person or entity making the selection.c Employees covered under a collective bargaining agreement may not be included in the testing allowed pursuant to this paragraph unless they agree to be included under a collective bargaining agreement.3 The policy developed by the committee must be approved by the Department of Labor. The employer may not change the policy regarding the random or arbitrary testing program without approval of the committee. The employer may choose not to submit the random or arbitrary testing program for approval and not to establish random or arbitrary testing program.4 The employer may not discriminate against employees who participate or refuse to participate on the committee.iv. Testing of Applicants: AA. Classifications or position titles to be tested. An employer may elect to cover all applicants under applicant testing.c. Consequences of Testing: i. Action to be taken for refusal to submit to a test.ii. Action to be taken between a test and receipt of test results.iii. Action to be taken based on confirmed positive result from a test of an employee. AA. Opportunity for rehabilitationBB. Action to be taken upon refusal to use rehabilitation resources.CC. Procedures for returning the employee to the previously held job or position after rehabilitation.iv. Action to be taken based on a subsequent confirmed positive test result.v. Action to be taken based on a confirmed positive result from a test of an applicant.vi. Action to be taken based on an employee's voluntary admission of a substance abuse problem and description of any available assistance and procedure for the employee.d. Testing Procedures: i. Identify sample collection facility or facilities.ii. Method of sample collection. a Right of the testee to segregate a portion of the sample for testing at a laboratory of their choice.b Procedure regarding removal of clothing. (Note: This should describe the specific procedure to be used at the facility or facilities where sample collection takes place.)c Statement that the testee will not be observed, directly or indirectly.d Any actions that will be taken to ensure that the sample has not been substituted, adulterated, diluted or otherwise tampered with must be described. These actions must conform with the Department of Human Services Rules.e If and how the employer will use point of collect tests.v. identify testing facility or facilities.vi. Procedure for notifying employee or applicant of the result.vii. Procedure for an employee or applicant to appeal and contest the accuracy of a confirmed positive result. At least one option for the appeal process must be at no cost to the employee or applicant.e. Description of Rehabilitation Servicei. Description of employee assistance program services.ii. Description of any additional rehabilitation services.iii. Procedure to obtain services. iv. Description of any possible employee payment for rehabilitation services allowed under 26 M.R.S.A. Section685, 2., c.