Louisiana (Mandatory State)

 

CHAPTER 14.  DRUG TESTING

PART I.  GENERAL PROVISIONS

§1001.  Definitions

As used in this Chapter, the following words and phrases shall have the meanings contained herein unless the context clearly requires otherwise:

(1)  CAP-FUDT-certified laboratory means a laboratory certified for forensic urine drug testing by the College of American Pathologists .

(2)  Employee means any person, paid or unpaid, in the service of an employer, as defined in Paragraph (3) of this Section.

(3)  Employer means any person, firm, or corporation, including any governmental entity, that has one or more workers or operators employed, or individuals performing service, in the same business, or in or about the same establishment, under any contract of hire or service, expressed or implied, oral or written; however, employer for the purposes of this Chapter shall not include any person, firm, or corporation that is subject to a federally mandated drug testing program.  For the purposes of this Chapter, an employee who is a person, firm, or corporation that contracts or subcontracts with a principal need not be considered, in whole or in part, to be an employee of such principal.

(4)  Medical review officer means a licensed physician responsible for receiving laboratory results generated by employer or testing entity's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his medical history and any other relevant biomedical information.

(5)  Negative employment consequences means any action taken by an employer or an employer's agent which negatively impacts an employee's or prospective employee's employment status.  Examples of negative employment consequences include but are not limited to termination of employment, refusal to hire, or altered conditions of employment such as counseling, probation, suspension, and demotion.

(6)  Prospective employee means any person who has made application to an employer, whether written or oral, to become an employee.

(7)  SAMHSA means the Substance Abuse and Mental Health Services Administration.

(8)  SAMHSA-certified laboratory means a laboratory certified for forensic drug testing by the Substance Abuse and Mental Health Services Administration.

(9)  SAMHSA guidelines means the Mandatory Guidelines for Federal Workplace Drug Testing Programs as published in the Federal Register on April 11, 1988 (53 FR 11970), revised on June 9, 1994 (59 FR 29908), further revised on September 30, 1997 (62 FR 51118), and any further revised guidelines issued by SAMHSA.

(10)  Sample means urine, blood, saliva, or hair.

(11)  Screening laboratory means any building, place, or facility in which operations and procedures for the biological, serological, immunological, chemical, immuno-hematological, or other examination of materials derived from the human body are performed for the purpose of drug testing and which is not SAMHSA-certified or CAP-FUDT-certified for forensic urine drug testing and if the following apply to the drug testing of said screening laboratory:

(a)  If, as a result of such testing, mandatory or discretionary negative employment consequences will not be rendered to the individual.

(b)  Drug testing is performed for any or all of the following classes of drugs: marijuana, opioids, cocaine, amphetamines, and phencyclidine.

(12)  Screening test means an immunoassay screen to eliminate negative specimens from further consideration.

(13)   Split sample means one specimen from one individual that is separated into two specimen containers.

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991; Acts 2004, No. 901, §1, eff. July 12, 2004.

 

§1002.  Applicability

A.  This Chapter applies to testing for the presence of marijuana, opioids, cocaine, amphetamines, and phencyclidine.

B.  This Chapter does not preclude or regulate the testing for drugs other than those specified in Subsection A of this Section or other controlled substances as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and alcohol.

C.  This Chapter shall not apply to treatment centers or physicians using drug testing to diagnose or monitor their patients, nor to any person, firm, or corporation engaged in the production and distribution of gas or electricity that is regulated by the Louisiana Public Service Commission.

D.  This Chapter shall not apply to drug testing conducted under legal authority including testing of persons in the criminal justice systems, such as arrestees, detainees, probationers, incarcerated persons, or parolees.

E.  This Chapter shall not apply to drug testing mandated by Federal Executive Order 12564.

F.  This Chapter shall not apply to drug testing conducted by the National Collegiate Athletic Association (NCAA) or the National Football League (NFL).

G.  This Chapter shall not apply to any athlete who is currently being drug tested under the auspices of any recognized international, national, regional, or state governing authority.

H.  This Chapter shall not apply to any person, firm or corporation engaged or employed in the exploration, drilling, and/or production of oil or gas in Louisiana or its territorial waters.

I.  This Chapter shall not apply to any employer or an employer's agent who uses an on-site screening test to test an employee or prospective employee when there are no negative employment consequences as defined in this Chapter.  As used in this Subsection, on-site screening test is a screening test which is easily portable and which can be administered in a location outside a laboratory such as a work site or elsewhere and is certified by the United States Food and Drug Administration (USFDA) for commercial distribution and which meets generally accepted cutoff levels such as those in the mandatory guidelines for federal workplace drug testing programs.

J.  This Chapter does not preclude an employer or an employer's agent from utilizing a USFDA cleared specimen testing method that uses a sample as defined in R.S. 49:1001 provided that such sample is processed in a laboratory with a SAMHSA certification using generally accepted cutoff levels as established by the USFDA for a saliva or oral fluid testing product, or by SAMHSA at such time when SAMHSA implements a final rule to regulate saliva or oral fluid testing.  Any saliva or oral fluid sample collected shall be subject to USFDA-cleared immunoassay screening and confirmation testing at a SAMHSA certified laboratory.  Such samples that test positive shall be preserved by the laboratory and available for challenge testing at the request of the donor.  No sample shall be used to collect or analyze DNA.

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991; Acts 2001, No. 855, §1; Acts 2004, No. 901, §1, eff. July 12, 2004.

 

PART II.  DRUG TESTING PROCEDURES AND STANDARDS 

§1005.  Use of certified laboratories for drug testing of samples collected

A.  All drug testing of individuals in residence in the state and all drug testing of samples collected in the state, including territorial waters and any other location to which the laws of Louisiana are applicable, shall be performed in SAMHSA-certified or CAP-FUDT-certified laboratories, if both of the following apply:

(1)  If, as a result of such testing, mandatory or discretionary negative employment consequences will be rendered to the individual.

(2)  Drug testing is performed for any or all of the following classes of drugs: marijuana, opioids, cocaine, amphetamines, and phencyclidine.

B.  Drug testing as provided in this Subsection shall be performed in compliance with the SAMHSA guidelines except as provided in this Chapter or pursuant to statutory or regulatory authority under R.S. 23:1081 et seq. and R.S. 23:1601 et seq.  The cut off limits for drug testing shall be in accordance with SAMHSA guidelines with the exception of initial testing for marijuana.  The initial cut off level for marijuana shall be no less than fifty nanograms/ML and no more than one hundred nanograms/ML as specified by the employer or the testing entity.  The Department of Health and Hospitals shall have the responsibility to adopt the  SAMHSA guidelines for purposes of governing drug-testing programs for specimens collected in accordance with this Chapter.  The Department of Health and Hospitals shall have the responsibility for adoption of any subsequent revisions of the  SAMHSA guidelines as of the initial effective date of this Chapter.

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991; SCR No. 137, 1991 R.S; Acts 2004, No. 901, §1, eff. July 12, 2004.

 

§1006.  Repealed by Acts 2004, No. 901, §2, eff. July 12, 2004. 

§1007.  Repealed by Acts 2004, No. 901, §2, eff. July 12, 2004. 

§1008.  Repealed by Acts 2004, No. 901, §2, eff. July 12, 2004.

 

PART III.  EMPLOYEE DRUG TESTING 

§1011.  Employee drug testing; rights of the employee

A.  Any employee, confirmed positive, upon his written request, shall have the right of access within seven working days to records relating to his drug tests and any records relating to the results of any relevant certification, review, or suspension/revocation-of-certification proceedings.

B.  An employer may, but shall not be required to, afford an employee whose drug test is certified positive by the medical review officer the opportunity to undergo rehabilitation without termination of employment.

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991.  

 

§1012.  Employee drug testing; responsibility of employer

A.  All information, interviews, reports, statements, memoranda, or test results received by the employer through its drug testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings, except in an administrative or disciplinary proceeding or hearing, or civil litigation where drug use by the tested individual is relevant.

B.  No cause of action for defamation of character, libel, slander, or damage to reputation or privacy arises in favor of any person against an employer or testing entity who has established a program of drug or alcohol testing in accordance with this Chapter, unless:

(1)  The results of that test were disclosed to any person other than the employer or testing entity, an authorized employee or agent of the employer or testing entity, the tested employee, or the tested prospective employee;

(2)  The information disclosed was based on a false test result or a failure to comply with the provisions of this Chapter;

(3)  All elements of an action for defamation of character, libel, slander, or damage to reputation or privacy as established by statute or civil law, are satisfied.  

C.  Any provision of this Chapter held to be prohibited by the laws of the state of Louisiana shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Chapter.  

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991.  

 

PART IV.  PUBLIC EMPLOYEE DRUG TESTING 

§1015.  Public employee drug testing

A.  A public employer may require, as a condition of continued employment, samples from his employees to test for the presence of drugs following an accident during the course and scope of his employment, under other circumstances which result in reasonable suspicion that drugs are being used, or as a part of a monitoring program established by the employer to assure compliance with terms of a rehabilitation agreement.

B.  A public employer may require samples from prospective employees, as a condition of hiring, to test for the presence of drugs.

C.  A public employer may implement a program of random drug testing of those employees who occupy safety-sensitive or security-sensitive positions.

D.  Any public employee drug testing shall occur pursuant to a written policy, duly promulgated, and shall comply with the provisions of this Chapter.

E.  In the event the Louisiana State Racing Commission shall require or conduct drug testing on its employees, agents, and representatives, the Commission shall comply with the provisions of this Part and the Louisiana Administrative Procedure Act as well as seek prior approval of the procedures of the drug testing by the appropriate legislative oversight committee.  The failure of the State Racing Commission to receive the required legislative approval shall negate all test results conducted under the non-approved procedures.  Any drug testing program or procedure required or conducted by the State Racing Commission shall be applicable and include the members of the State Racing Commission.

F.(1)  A public employer shall require samples to test for the presence of drugs, as a condition of hiring, from prospective employees whose principal responsibilities of employment include operating a public vehicle, performing maintenance on a public vehicle, or supervising any public employee who operates or maintains a public vehicle.

(2)  A public employer shall implement a program of random drug testing of those employees whose principal responsibility is to operate public vehicles, maintain public vehicles, or supervise any public employee who drives or maintains public vehicles.

(3)(a)  For the purposes of this Subsection, public vehicle shall include any motor vehicle, watercraft, aircraft or rail vehicle owned or controlled by the state.

(b)  For purposes of this Subsection, public employer shall mean the state.

(4)  The provisions of this Subsection shall not be construed so as to supplant any testing program in existence that meets the requirements of the Subsection.

Acts 1990, No. 1036, §1, eff. Jan. 1, 1991; Acts 1997, No. 1194, §1.

 

PART V.  TESTING OF PERSONS RECEIVING CERTAIN BENEFITS FROM THE STATE 

§1021. Random drug tests; commissioner of administration

A.(1)  The legislature does hereby declare that a state of emergency exists in Louisiana as a result of the spiraling increases of abuse of illegal substances by its citizens.  The legislature further declares that such illegal drug abuse presents a clear and present danger to the health, welfare, and security of the state, its citizens, and government.  The legislature acknowledges that the terrible cost of drug abuse is ultimately paid by all of the state's citizens in the form of public monies expended to eradicate, interdict, and destroy such illegal substances, keep those substances away from our homes, families, schools, and children, operate a costly and massive criminal justice system for violators and continue to attempt to rehabilitate those who have lost the struggle to be free of illegal drugs.  The legislature further acknowledges that all its citizens eventually pay the high price of illegal substance abuse by way of decreased productivity in the work place, and higher costs for goods and services throughout the state's economic apparatus. The elderly, in particular, are especially affected by crimes of violence perpetrated by drug abusers who murder and rob to support their drug habit.  Children, especially from lower income families, suffer unnecessarily from drug abuse when they go unfed, ill clothed, and without proper medical treatment because drug abusing adults in the household spend badly needed money for illegal substances.  Many times the drug abusers deny themselves proper medical treatment to obtain illegal drugs, often becoming not only ill, but indigent as well.  The legislature therefore believes that government has a compelling interest to insure, protect, and safeguard its citizens from the scourge of illegal drug abuse, whether in the classroom or the halls of government.

(2)  Those persons entering into contracts with the state to provide goods and services, including such items as food services, construction of roads, and other public improvements, and goods and services provided could place in jeopardy the lives or livelihood of persons operating motor vehicles, eating at public state facilities or receiving other goods and services from such vendors.  This would certainly involve a safety sensitive issue.  Those persons receiving loans apply for the privilege of such award of taxpayer funds based upon claiming a special need for such assistance.  It is in the state's best interest and a duty of the state to protect the taxpayers from waste, fraud, and corruption by determining if such persons receiving such funding are using the funds as stated in their applications.  Additionally, children, the elderly, and others dependent on persons receiving such funds are in increased danger when drugs are present because of the violent nature of the drug environment.  The state, therefore, has a higher duty to be sure its funds are not used to further the addiction of someone who has the responsibility over children, elderly, or others dependent on their care.

B.  The commissioner of administration shall establish and administer a program for random drug testing for all persons who receive anything of economic value or receive funding from the state or an entity thereof, including but not limited to all persons awarded state contracts to provide goods or services or loans from the state or an entity thereof.

C.  The commissioner of administration shall promulgate rules and regulations for conducting a random drug testing program.  The commissioner shall accomplish the actual operation of the drug testing program with the help, assistance, and support of all the agencies and departments of the state.  When an agency, department, or other government entity has an operational drug testing program, that agency, department, or government entity shall randomly test all of those persons seeking contracts or loans.

D.  The cost of testing persons subject to the provisions of this Section for the presence of illegal drugs shall be borne by the agency, department, or government entity that contracts with or grants a loan to the person being tested.

E.  If the sample of a person tested subject to the provisions of this Section should indicate the presence of an illegal substance and it is the first such indication of such an illegal substance, that person shall be subject to compliance with the terms of a rehabilitative treatment program approved by the commissioner of administration as a prerequisite to continuation of the contract or loan from the state or an entity thereof.  The costs of such a rehabilitative treatment program will be paid by the person's health care insurer if that person has such coverage through said health care insurer.  Otherwise, the costs of the treatment shall be borne by the person at his own expense. If the person is indigent, the program costs shall be borne by the agency requiring the drug testing and rehabilitative treatment.

F.  If a person subject to the provisions of this Section refuses to comply with a test request or if the sample of a person tested subject to the provisions of this Section indicates the presence of an illegal substance and it is the second or subsequent indication of such an illegal presence or occurs during the rehabilitative treatment program, that person shall be subject to termination, removal, or loss of the contract or loan.

G.  Any person subject to the provisions of this Section shall be deemed to have given consent to a chemical test or tests for the purpose of determining the presence in their body of any illegal substance as determined by the board.  The commissioner of administration shall set the standards and rules and regulations governing all aspects of the testing and rehabilitative process.

H.  The commissioner of administration shall prepare a written statistical report on the program and submit the report to the legislature on or before January 1, 1999 and annually thereafter. 

Acts 1997, No. 1459, §1.

 

NOTE: ACTS 1997, NO. 1459, §4, PROVIDES FOR EFFECTIVENESS UPON ALLOCATION OF FUNDS.