S T A T E O F N E W Y O R K
________________________________________________________________________
8448
2011-2012 Regular Sessions
I N A S S E M B L Y
June 15, 2011
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Introduced by M. of A. RODRIGUEZ -- read once and referred to the
Committee on Mental Health
AN ACT to amend the mental hygiene law, in relation to drug and alcohol
testing of employees of the office for people with developmental disa-
bilities facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The mental hygiene law is amended by adding a new section
16.34 to read as follows:
S 16.34 DRUG AND ALCOHOL TESTING OF CERTAIN EMPLOYEES.
(A) (I) EVERY PROVIDER OF SERVICES STATEWIDE, WHO CONTRACTS WITH OR IS
APPROVED, CERTIFIED, LICENSED, FUNDED OR OTHERWISE AUTHORIZED BY THE
DEPARTMENT TO PROVIDE SERVICES SHALL REQUIRE ALL OFFICERS, EMPLOYEES AND
VOLUNTEERS TO SUBMIT TO RANDOM, UNANNOUNCED DRUG TESTING NO LESS THAN
TWICE A YEAR AT THE EXPENSE OF SUCH FACILITY.
(II) ALL OFFICERS, EMPLOYEES AND VOLUNTEERS WORKING AT A FACILITY
PROVIDING RESIDENTIAL CARE TO YOUTH AS SUCH TERM IS DEFINED IN PARAGRAPH
(A) OR (B) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED TWELVE-A OF THE
SOCIAL SERVICES LAW SHALL SUBMIT TO RANDOM, UNANNOUNCED DRUG TESTING NO
LESS THAN TWICE A YEAR AT THE EXPENSE OF SUCH FACILITY.
(B) (I) ALL PROSPECTIVE EMPLOYEES OR VOLUNTEERS MUST PASS A DRUG TEST
ADMINISTERED BY THE PROVIDER PRIOR TO BEING HIRED.
(II) ALL PROSPECTIVE EMPLOYEES, PROVIDERS OR VOLUNTEERS WORKING AT A
FACILITY PROVIDING RESIDENTIAL CARE TO YOUTH AS SUCH TERM IS DEFINED IN
PARAGRAPH (A) OR (B) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED
TWELVE-A OF THE SOCIAL SERVICES LAW MUST PASS A DRUG TEST ADMINISTERED
BY THE FACILITY PRIOR TO BEING HIRED.
(C) (I) IMMEDIATELY FOLLOWING ANY INCIDENT WHICH WOULD BE CONSIDERED A
SERIOUS REPORTABLE INCIDENT, AN ALLEGATION OF ABUSE, OR RESULTS IN
SUBSTANTIAL INJURY OR DEATH, OR FOLLOWING ANY INCIDENT WHICH DIRECTLY
CREATES RISK OF SUBSTANTIAL INJURY OR DEATH OF A RESIDENT WITH MENTAL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13136-01-1
A. 8448 2
DISABILITIES OR A PHYSICAL DISABILITY, ALL EMPLOYEES INVOLVED IN SUCH
INCIDENT SHALL BE SUBJECT TO DRUG AND ALCOHOL TESTS AS SOON AS POSSIBLE
BUT IN NO EVENT MORE THAN ONE HOUR AFTER SUCH INCIDENT WAS REPORTED. IF
THE INCIDENT RISES TO THE LEVEL OF A CRIME THE INCIDENT SHALL BE
REPORTED TO LOCAL LAW ENFORCEMENT AND TO THE DISTRICT ATTORNEY.
(II) IMMEDIATELY FOLLOWING ANY INCIDENT WHICH RESULTS IN SUBSTANTIAL
INJURY OR DEATH OR FOLLOWING ANY INCIDENT WHICH DIRECTLY CREATES A RISK
OF SUBSTANTIAL INJURY TO OR DEATH OF A YOUTH RESIDING IN RESIDENTIAL
CARE AS SUCH TERM IS DEFINED IN PARAGRAPH (A) OR (B) OF SUBDIVISION FOUR
OF SECTION FOUR HUNDRED TWELVE-A OF THE SOCIAL SERVICES LAW, ALL EMPLOY-
EES INVOLVED IN SUCH INCIDENT SHALL BE SUBJECT TO DRUG AND ALCOHOL TESTS
AS SOON AS POSSIBLE BUT IN NO EVENT MORE THAN ONE HOUR AFTER SUCH INCI-
DENT WAS REPORTED. IF THE INCIDENT RISES TO THE LEVEL OF A CRIME THE
INCIDENT SHALL BE REPORTED IMMEDIATELY TO LOCAL LAW ENFORCEMENT AND TO
THE DISTRICT ATTORNEY.
(D) IMMEDIATELY FOLLOWING ANY ALLEGATION OR REPORT OF SUSPECTED PHYS-
ICAL OR SEXUAL ABUSE ALL EMPLOYEES NAMED IN SUCH ALLEGATION OR REPORT
SHALL BE SUBJECT TO DRUG AND ALCOHOL TESTS SOON AS POSSIBLE BUT IN NO
EVENT MORE THAN ONE HOUR AFTER SUCH INCIDENT WAS REPORTED.
(E) DRUG AND ALCOHOL TESTING AS AUTHORIZED BY SUBDIVISIONS (C) AND (D)
OF THIS SECTION SHALL BE ADMINISTERED AS SOON AS POSSIBLE BUT IN NO
EVENT MORE THAN ONE HOUR AFTER ANY OF THE CIRCUMSTANCES DESCRIBED IN
SUCH SUBDIVISION (C) OR (D) HAVE OCCURRED. FAILURE BY SUCH EMPLOYEE TO
COMPLY WITH SUCH TESTING REQUIREMENTS SHALL BE SUBJECT TO IMMEDIATE
SUSPENSION WITHOUT PAY AND TERMINATION.
(F) AN EMPLOYEE MAY SUBMIT A LIST OF ANY LEGALLY PRESCRIBED MEDICA-
TIONS HE OR SHE IS USING PRIOR TO THE ADMINISTRATION OF THE TEST.
(G) THE EMPLOYER SHALL REQUIRE THE SIMULTANEOUS COLLECTION OF TWO
SAMPLES IN SEPARATE CONTAINERS AND PROMPTLY SUBMIT BOTH TO A PRIVATE
LABORATORY WHICH PERFORMS FORENSIC DRUG TESTING. ONE SAMPLE SHALL BE
PRESERVED IN A SECURE FACILITY IN SUCH A WAY THAT IT MAY BE SUBSEQUENTLY
TESTED FOR THE PRESENCE OF A CONTROLLED SUBSTANCE OR ALCOHOL IN THE
EVENT TESTING OF THE OTHER SAMPLE INDICATES A POSITIVE RESULT FOR THE
PRESENCE OF SUCH A SUBSTANCE OR ALCOHOL.
(H) ANY SAMPLE THAT INITIALLY TESTS POSITIVE FOR THE PRESENCE OF A
CONTROLLED SUBSTANCE OR ALCOHOL SHALL, WHERE APPLICABLE, ALSO BE
SUBJECTED TO A CONFIRMATORY TEST BY GAS CHROMATOGRAPHY WITH MASS SPEC-
TROMETRY OR AN EQUIVALENT SCIENTIFICALLY ACCEPTED METHOD THAT PROVIDES
QUANTITATIVE DATA REGARDING THE DETECTED CONTROLLED SUBSTANCE,
CONTROLLED SUBSTANCE METABOLITES OR ALCOHOL.
(I) THE LABORATORY WHICH PERFORMED THE TEST SHALL REPORT TO AN EMPLOY-
ER THAT A SAMPLE IS POSITIVE ONLY IF BOTH THE INITIAL TEST AND THE
CONFIRMATION TEST ARE POSITIVE FOR THE PRESENCE OF A CONTROLLED
SUBSTANCE.
(J) AN EMPLOYEE WHO REFUSES TO SUBMIT TO A DRUG TEST SHALL IMMEDIATELY
BE SUSPENDED WITHOUT PAY AND WILL BE TERMINATED.
(K) ANY EMPLOYEE WHO DOES NOT PASS A DRUG TEST ADMINISTERED PURSUANT
TO THIS SECTION SHALL BE IMMEDIATELY SUSPENDED FROM EMPLOYMENT WITHOUT
PAY AND WILL BE TERMINATED.
S 2. This act shall take effect on the ninetieth day after it shall
have become a law, provided, however, that effective immediately, the
department of mental hygiene shall be authorized to adopt any rules and
regulations deemed necessary to effect the provisions of this act.