S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1168

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  SEMINERIO  --  read once and referred to the
  Committee on Labor

AN ACT to amend the labor law, in relation to the drug testing of police
  officers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  labor law is amended by adding a new article 20-D to
read as follows:
                               ARTICLE 20-D
                     DRUG TESTING OF POLICE OFFICERS
SECTION 760. LEGISLATIVE INTENT.
        761. DEFINITIONS.
        762. TESTING PROCEDURES.
        763. CONFIDENTIALITY.
        764. RELATION TO COLLECTIVE BARGAINING.
        765. SEVERABILITY.
  S 760. LEGISLATIVE INTENT. THE TESTING OF POLICE  OFFICERS  TO  DETECT
THE  PRESENCE  OF  CONTROLLED  SUBSTANCES  HAS BECOME A COMMON PRACTICE.
HOWEVER, THE ISSUE OF DRUG TESTING CONTINUES TO BE A VERY SENSITIVE ONE,
AND WHILE IT IS IN THE INTEREST OF THE STATE TO INSURE THAT POLICE OFFI-
CERS DO NOT ILLEGALLY USE DRUGS, IT IS ALSO IN THE STATE'S  INTEREST  TO
ASSURE  POLICE  OFFICERS  THAT  TESTING PROGRAMS ARE OPERATED FAIRLY AND
ACCURATELY. AT THE PRESENT TIME, HOWEVER, THERE ARE NO STATEWIDE  PROCE-
DURES  WHICH  EMPLOYERS  OF  POLICE OFFICERS ARE REQUIRED TO FOLLOW WHEN
TESTING OFFICERS FOR THE PRESENCE OF CONTROLLED SUBSTANCES. THIS ARTICLE
ESTABLISHES A MINIMUM SET OF PROCEDURES  FOR  ALL  EMPLOYERS  OF  POLICE
OFFICERS TO FOLLOW, BRINGING SOME CLARITY AND UNIFORMITY TO THIS ISSUE.
  S  761.  DEFINITIONS.  WHEN  USED IN THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01903-01-9
              

A. 1168                             2

  1. "CONTROLLED SUBSTANCE"  MEANS  ANY  ITEM  OR  SUBSTANCE  LISTED  IN
SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
  2. "EMPLOYEE" MEANS A POLICE OFFICER AS DEFINED IN SECTION 1.20 OF THE
CRIMINAL  PROCEDURE LAW WHO HAS FULFILLED HIS OR HER REQUIRED PROBATION-
ARY PERIOD.
  3. "EMPLOYER" MEANS THE STATE, ANY POLITICAL SUBDIVISION OF THE STATE,
A PUBLIC AUTHORITY, OR ANY OTHER GOVERNMENTAL AGENCY OR  INSTRUMENTALITY
THEREOF  WHICH  EMPLOYS  THE POLICE OFFICER WHO IS THE SUBJECT OF A TEST
FOR THE PRESENCE OF A CONTROLLED SUBSTANCE.
  4. "LABORATORY" MEANS A PUBLIC OR PRIVATE  LABORATORY  WHICH  PERFORMS
FORENSIC DRUG TESTING AND IS NOT OWNED OR OPERATED BY THE EMPLOYER.
  S 762. TESTING PROCEDURES. 1. THE EMPLOYER SHALL PROVIDE ALL EMPLOYEES
WITH  THE  EMPLOYER'S  WRITTEN POLICY WHICH IDENTIFIES THE CIRCUMSTANCES
UNDER WHICH AN EMPLOYEE MAY BE REQUIRED TO SUBMIT TO DRUG TESTING PROCE-
DURES, THE PARTICULAR TEST UTILIZED, AND THE CONSEQUENCES OF A  POSITIVE
TEST RESULT.
  2.  ALL  SAMPLE  ANALYSES  SHALL  BE  CONDUCTED  BY A LABORATORY WHICH
PERFORMS FORENSIC DRUG TESTING.
  3. ALL EMPLOYERS AND LABORATORIES ENGAGED IN THE COLLECTION, HANDLING,
TESTING OR STORAGE OF SAMPLES FOR THE PURPOSES  OF  THIS  ARTICLE  SHALL
ADHERE  TO  PROCEDURES  FOR  THE CUSTODY, INTEGRITY AND SECURITY OF SUCH
SAMPLES THAT COMPLY WITH REGULATIONS  PROMULGATED  BY  THE  DIVISION  OF
CRIMINAL JUSTICE SERVICES.
  4.  AT THE REQUEST OF THE EMPLOYEE, THE EMPLOYER SHALL PERMIT A REPRE-
SENTATIVE OF THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT TO BE PRESENT  AT
THE  TIME  OF  ANY SAMPLE COLLECTION. IN THE EVENT THAT SUCH A REPRESEN-
TATIVE IS NOT AVAILABLE WITHIN A REASONABLE PERIOD OF TIME, A CO-EMPLOY-
EE WITHIN THE SAME COLLECTIVE BARGAINING UNIT MAY BE DESIGNATED  BY  THE
EMPLOYEE TO ACT AS A REPRESENTATIVE FOR THIS PURPOSE.
  5.  THE  EMPLOYER  MUST SIMULTANEOUSLY COLLECT TWO SAMPLES IN SEPARATE
CONTAINERS AND PROMPTLY SUBMIT BOTH TO A LABORATORY. ONE SAMPLE MUST  BE
PRESERVED IN A SECURE FACILITY IN SUCH A WAY THAT IT MAY BE SUBSEQUENTLY
TESTED  FOR  THE PRESENCE OF A CONTROLLED SUBSTANCE IN THE EVENT TESTING
OF THE OTHER SAMPLE INDICATES A POSITIVE RESULT FOR THE PRESENCE OF SUCH
A SUBSTANCE.
  6. ANY SAMPLE THAT INITIALLY TESTS POSITIVE  FOR  THE  PRESENCE  OF  A
CONTROLLED  SUBSTANCE  SHALL ALSO BE SUBJECTED TO A CONFIRMATORY TEST BY
GAS CHROMATOGRAPHY WITH MASS SPECTROMETRY  OR  AN  EQUIVALENT  SCIENTIF-
ICALLY  ACCEPTED  METHOD  THAT  PROVIDES QUANTITATIVE DATA REGARDING THE
DETECTED CONTROLLED SUBSTANCE OR CONTROLLED SUBSTANCE METABOLITES.
  7. A LABORATORY MAY REPORT TO AN EMPLOYER THAT A  SAMPLE  IS  POSITIVE
ONLY IF BOTH THE INITIAL TEST AND THE CONFIRMATION TEST ARE POSITIVE FOR
THE PRESENCE OF A CONTROLLED SUBSTANCE.
  8. WITHIN THIRTY DAYS OF RECEIVING A REPORT INDICATING A POSITIVE TEST
RESULT,  THE EMPLOYER SHALL PROVIDE THE EMPLOYEE TESTED WITH AN OPPORTU-
NITY TO HAVE THE OTHER PRESERVED SAMPLE TESTED FOR  THE  PRESENCE  OF  A
CONTROLLED  SUBSTANCE  AT  A  LABORATORY DESIGNATED BY THE EMPLOYEE. THE
TEST MAY BE AT THE EXPENSE OF THE EMPLOYEE. THE SAMPLE AND TEST IN  SUCH
EVENT  SHALL  REMAIN  SUBJECT TO THE TESTING, PRESERVATION AND REPORTING
REQUIREMENTS OF THIS SECTION AND THE RESULT OF ANY SUCH  TEST  SHALL  BE
PROVIDED  TO THE EMPLOYEE AND, AT THE EMPLOYEE'S WRITTEN REQUEST, HIS OR
HER COLLECTIVE BARGAINING REPRESENTATIVE.
  9. ALL TEST RESULTS FROM THE LABORATORY SHALL BE IN WRITING AND  SHALL
CONTAIN, AT A MINIMUM, THE FOLLOWING INFORMATION:
  (A)  THE  METHOD OF ANALYSIS FOR BOTH THE INITIAL AND ANY CONFIRMATORY
TEST;

A. 1168                             3

  (B) THE RESULTS OF EACH TEST;
  (C)  THE SENSITIVITY OF THE METHODOLOGY EMPLOYED FOR CONFIRMATION, THE
DETECTION LEVEL, MEANING THE CUT-OFF  OR  MEASURE  USED  TO  DISTINGUISH
POSITIVE AND NEGATIVE SAMPLES, ON BOTH THE INITIAL SCREENING AND CONFIR-
MATION PROCEDURES IF THE SAMPLE IS FOUND TO BE POSITIVE;
  (D)  THE  ACCURACY AND PRECISION OF THE QUANTITATIVE DATA REPORTED FOR
THE CONFIRMATION TEST; HOWEVER, IN THE CASE  OF  A  NEGATIVE  TEST,  THE
REPORT  SHALL  SPECIFY  ONLY  THAT  THE TEST WAS NEGATIVE FOR CONTROLLED
SUBSTANCES; AND
  (E) THE NAME AND ADDRESS OF THE LABORATORY  PERFORMING  THE  ANALYSIS,
THE DATE THAT THE TEST WAS ADMINISTERED AND ANALYSIS WAS PERFORMED.
  10.  AFTER  RECEIPT  BY  THE  EMPLOYER  OF  A REPORT FROM A LABORATORY
CONTAINING THE RESULT OF A TEST,  THE  EMPLOYER  SHALL  PROVIDE  WRITTEN
NOTIFICATION  OF  SUCH  RESULT,  WHETHER  POSITIVE  OR  NEGATIVE, TO THE
EMPLOYEE. THE NOTIFICATION SHALL BE PROVIDED WITHIN THE EMPLOYEE'S FIRST
FIVE WORKING DAYS IMMEDIATELY FOLLOWING THE RECEIPT OF  SUCH  REPORT  BY
THE  EMPLOYER  DURING  WHICH THE EMPLOYEE IS IN PERSONAL ATTENDANCE EACH
DAY AT A FACILITY OPERATED BY THE EMPLOYER.
  11. WITHIN THIRTY DAYS AFTER THE RECEIPT  OF  A  REPORT  CONTAINING  A
NEGATIVE  TEST  RESULT,  THE EMPLOYER SHALL DESTROY ALL RECORDS, REPORTS
AND OTHER DOCUMENTS IN ITS POSSESSION RELATED TO THE TEST AND SHALL  NOT
THEREAFTER   MAKE  REFERENCE  TO  THE  TEST  IN  ANY  EMPLOYMENT-RELATED
PROCEEDINGS.
  12. THE LABORATORY SHALL PRESERVE ALL SAMPLES IN A SECURE FACILITY FOR
SIXTY DAYS AFTER THE ISSUANCE OF A TEST REPORT AND, UPON WRITTEN REQUEST
FOR FURTHER PRESERVATION BY THE EMPLOYER  OR  EMPLOYEE  RECEIVED  WITHIN
SUCH  PERIOD,  FOR SUCH AN ADDITIONAL PERIOD OF TIME AS MAY BE SPECIFIED
IN THE REQUEST.
  13. IN THE COURSE OF ANY DISCIPLINARY OR JUDICIAL PROCEEDINGS  INVOLV-
ING  A  POSITIVE  TEST RESULT, AN EMPLOYEE SHALL HAVE THE OPPORTUNITY TO
PRESENT EVIDENCE ON THE SIGNIFICANCE AND ACCURACY OF THE  TEST  RESULTS.
AN  EMPLOYEE MAY ALSO PRESENT EVIDENCE THAT THE PROCEDURES FOLLOWED WITH
RESPECT TO THE COLLECTION, HANDLING, TESTING OR STORAGE  OF  THE  SAMPLE
DESTROYED  THE  VALIDITY  OF  THE SAMPLE OR THE TEST RESULT. AN EMPLOYEE
SHALL ALSO BE GIVEN THE OPPORTUNITY, AT HIS OR HER REQUEST,  TO  PRESENT
THE  RESULT OF ANY TEST FOR THE PRESENCE OF A CONTROLLED SUBSTANCE WHICH
MAY HAVE BEEN PERFORMED ON THE OTHER SAMPLE.
  14. ANY EMPLOYER OR LABORATORY  THAT  IS  FOUND,  THROUGH  LITIGATION,
ARBITRATION  OR  ADMINISTRATIVE  PROCEEDING, TO HAVE GENERATED OR RELIED
UPON A POSITIVE TEST RESULT OF THE SUBJECT EMPLOYEE THAT IS EITHER FALSE
OR NOT SUPPORTED BY LABORATORY DOCUMENTATION SHALL REPORT  THAT  FINDING
IN  WRITING  TO  THE  COMMISSIONER  OF  THE DEPARTMENT OF HEALTH AND THE
COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES WITHIN  THIRTY
DAYS OF THE FINAL DISPOSITION OF SUCH A PROCEEDING.
  S  763.  CONFIDENTIALITY.  1.  EMPLOYERS,  LABORATORIES AND THE AGENTS
THEREOF WHO RECEIVE OR HAVE ACCESS TO INFORMATION CONCERNING DRUG  TESTS
AND  THEIR  RESULTS SHALL KEEP ALL SUCH INFORMATION CONFIDENTIAL. EXCEPT
WHERE THE RELEASE OF SUCH INFORMATION IS COMPELLED BY SUBPOENA OR  COURT
ORDER,  ANY  SUCH  INFORMATION  SHALL  BE  RELEASED  ONLY UPON A WRITTEN
CONSENT VOLUNTARILY EXECUTED BY THE EMPLOYEE. ANY CONSENT SHALL CONTAIN,
AT A MINIMUM, THE FOLLOWING INFORMATION:
  (A) THE NAME OR NAMES OF PERSONS AUTHORIZED TO OBTAIN THE INFORMATION;
  (B) THE PURPOSE OF THE DISCLOSURE;
  (C) THE PRECISE INFORMATION TO BE DISCLOSED; AND
  (D) THE DURATION OF THE CONSENT.

A. 1168                             4

  2. THIS SECTION SHALL NOT APPLY TO PROCEEDINGS IN WHICH  THE  EMPLOYEE
IS  ACCUSED  OF A CRIMINAL VIOLATION, NOR SHALL IT APPLY TO DISCIPLINARY
OR JUDICIAL  PROCEEDINGS  RELATING  TO  EMPLOYMENT,  OR  TO  PROSPECTIVE
EMPLOYMENT INQUIRIES RECEIVED FROM ANY LAW ENFORCEMENT AGENCY.
  S  764.  RELATION TO COLLECTIVE BARGAINING. 1. NOTHING IN THIS ARTICLE
SHALL BE CONSTRUED TO PROHIBIT, AS A SUBJECT OF  COLLECTIVE  BARGAINING,
THE  ESTABLISHMENT  AND  TERMS  OF  A  PROGRAM  TO  TEST  EMPLOYEES  FOR
CONTROLLED SUBSTANCES WHICH IS CONSISTENT WITH THE  PROVISIONS  OF  THIS
ARTICLE.
  2.  NOTHING  IN THIS ARTICLE SHALL SUPERSEDE ANY COLLECTIVE BARGAINING
AGREEMENT IN EFFECT ON THE EFFECTIVE DATE OF THIS ARTICLE. NO COLLECTIVE
BARGAINING AGREEMENT COMMENCING ON OR AFTER THE EFFECTIVE DATE  OF  THIS
ARTICLE  MAY  AUTHORIZE  TESTING  OF EMPLOYEES FOR CONTROLLED SUBSTANCES
UNLESS IT CONTAINS TESTING PROCEDURES  WHICH  ARE  CONSISTENT  WITH  THE
PROVISIONS OF THIS ARTICLE.
  S  765. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICA-
TION THEREOF TO ANY EMPLOYEE OR CIRCUMSTANCES ARE HELD  TO  BE  INVALID,
SUCH  INVALIDITY  SHALL  NOT  AFFECT OTHER PROVISIONS OR APPLICATIONS OF
THIS ARTICLE WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION  OR
APPLICATION,  AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE SEVERA-
BLE.
  S 2. This act shall take effect on the first of January next  succeed-
ing  the date on which it shall have become a law, provided that, effec-
tive immediately, the division of criminal  justice  services  shall  be
authorized  to  adopt  such rules and regulations as may be necessary to
effect the provisions of this act.