State Law > Louisiana > Louisiana Drug Testing Law

Louisiana Drug Testing Law

 

Louisiana law regarding drug testing for employees can be found in Title 49 of the Louisiana Revised Statutes in the following sections. State employee drug testing is regulated by Executive Order 98-38, not covered here.

GENERAL PROVISIONS

  • 1001. Definitions
  • 1002. Applicability
DRUG TESTING PROCEDURES AND STANDARDS
  • 1005. Use of certified laboratories for drug testing of samples collected
  • 1006. Collection of forensic urine drug specimens
  • 1007. Review of drug testing results; medical review officer
  • 1008. Initial testing; screening laboratories; guidelines
EMPLOYEE DRUG TESTING
  • 1011. Employee drug testing; rights of the employee
  • 1012. Employee drug testing; responsibility of employer
PUBLIC EMPLOYEE DRUG TESTING
  • 1015. Public employee drug testing

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) "Aliquot" means a portion of a specimen used for testing.

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

(3) "Chain of custody" means procedures to account for the integrity of each urine specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen. These procedures shall require that an appropriate chain of custody form be used from the time of collection to receipt by the laboratory and that, upon receipt in the laboratory, an appropriate laboratory chain of custody form account for the sample or sample aliquots within the laboratory. Chain of custody forms shall, at a minimum, include an entry documenting date and purpose each time a specimen or aliquot is handled or transferred and shall identify each individual in the chain of custody.

(4) "Collection site" means a place designated by the employer where individuals present themselves for the purpose of providing a specimen of their urine to be analyzed for the presence of drugs.

(5) "Collection site person" means a person who instructs and assists individuals at a collection site and who receives and makes a preliminary observation of the urine specimen provided by those individuals. A collection site person shall have successfully completed training to carry out this function.

(6) "Confirmatory test" means a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the initial test and which uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy.

(7) "Employee" means any person, paid or unpaid, in the service of an employer, as defined in Paragraph (8) of this Section.

(8) "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.

(9) "Initial test" or "screening test" means an immunoassay screen to eliminate "negative" urine specimens from further consideration.

(10) "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.

(11) "Monitor" means repeated drug testing of an individual following a positive drug test to detect the use of drugs.

(12) "NIDA" means the National Institute on Drug Abuse.

(13) "NIDA-certified laboratory" means a laboratory certified for forensic urine drug testing by the National Institute on Drug Abuse.

(14) "NIDA guidelines" means the Mandatory Guidelines for Federal Workplace Drug Testing Programs as published in the Federal Register, Volume 53, No. 69, and any revised guidelines issued by the National Institute on Drug Abuse.

(15) "Proficiency Testing Program" means performance of testing on specimens containing those drugs and metabolites which each laboratory shall be prepared to assay in concentration ranges that allow detection of the analyte by commonly used immunoassay screening techniques. The Proficiency Testing Program for screening laboratories shall be approved for use by the Department of Health and Hospitals.

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

(17) "Quality assurance" means a program to ensure quality standards in all aspects of the testing process, including but not limited to specimen acquisition, chain of custody, security and reporting of results, initial and confirmatory testing, and validation of analytical procedure.

(18) "Quality control" means procedures designed to assess the conduct of each step of the process for testing of drugs.

(19) "Sample" means urine, blood, saliva, or hair.

(20) "Screening laboratories" 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 NIDA-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 consequences will be rendered to the individual, and

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

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

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 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 or CAP-FUDT certification using generally accepted cutoff levels as established by the USFDA for the type of sample tested, or by SAMHSA at such time when SAMHSA implements a final rule to regulate saliva or oral fluid testing the type of sample test. Any sample collected shall be subject to USFDA-cleared immunoassay screening and confirmation testing at a SAMHSA or CAP-FUDT 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.

PART II. DRUG TESTING PROCEDURES AND STANDARDS

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

A. Beginning June 1, 1991, all drug testing, except as provided for in R.S. 49:1008, 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 NIDA-certified or CAP-FUDT-certified laboratories, if both of the following apply:

(1) If, as a result of such testing, mandatory or discretionary 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 NIDA 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 NIDA 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 NIDA 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 NIDA guidelines as of the initial effective date of this Chapter.

1006. Collection of forensic urine drug specimens

A. All collections of urine specimens for drug testing shall be collected, stored, and transported in compliance with the NIDA guidelines, or pursuant to statutory or regulatory authority granted under R.S. 23:1081 et seq. and R.S. 23:1601 et seq.

B.

(1) All collection of urine specimens shall be collected with regard to privacy of the individual.

(2) Direct observation of the individual during collection of the urine specimen may be allowed under any of the following conditions:

(a) There is reason to believe that the individual may alter or substitute the specimen to be provided.

(b) The individual has provided a urine specimen that falls outside the acceptable temperature range as listed in the NIDA guidelines.

(c) The last urine specimen provided by the individual was verified by the medical review officer as being adulterated based upon the determinations of the laboratory.

(d) The collection site person observes conduct indicating an attempt to substitute or adulterate the sample.

(e) The individual has previously been determined to have a urine specimen positive for one or more of the drugs the testing of which is regulated by this Chapter, and is being tested for purposes of follow-up testing upon or after return to service.

(f) The type of drug testing is post-accident or reasonable suspicion/cause.

(3) A designated representative of the entity authorizing the drug testing shall review and concur in advance with any decision by a collection site person to obtain a specimen under direct observation. All direct observation shall be conducted by a same gender collection site person.

C. Every collection site person shall be responsible for sanitary collection of urine specimens while maintaining privacy, security, and the chain of custody. Every collection site person shall be responsible for the proper disposal of biohazardous waste and dispose of all biohazardous waste in accordance with proper safety procedures.

D. The employer may, but is not required to, direct each collection site person to collect split samples. If split samples are collected, they shall be collected according to the following:

(1) The donor shall urinate into a collection container, which the collection site person, in the presence of the donor, after the initial examination, pours into two specimen bottles.

(2) The first bottle is to be used for the employer-mandated test, and at a minimum shall contain the quantity specified by the NIDA guidelines. If there is no additional urine available for the second specimen bottle, the first specimen bottle shall nevertheless be processed for testing.

(3) Up to sixty ML of the remainder of the urine shall be poured into the second specimen bottle.

(4) All requirements of this Part shall be followed with respect to both samples, including the requirement that a copy of the chain of custody form accompany each bottle processed under split sample procedures.

(5) The first sample of the split sample collection may be forwarded to an NIDA-certified or a CAP-FUDT-certified laboratory in compliance with the NIDA guidelines for initial and confirmatory testing in compliance with the regulations of this
Chapter or pursuant to statutory or regulatory authority under R.S. 23:1081 et seq. or R.S. 23:1601 et seq.

(6) The second sample may be sealed, labeled, and stored for future use or used for testing for drugs not listed in the regulations of this Chapter. Any specimen collected under split sample procedures must be stored in a secured, refrigerated environment and an appropriate entry made in the chain of custody form.

(7) If the test of the first bottle is confirmed positive, and a split sample is collected, the employee may request that the medical review officer direct that the second bottle be tested, at the employee's own expense, in an NIDA-certified or CAP-FUDT-certified laboratory for presence of the drug(s) for which a positive result was obtained in the test of the first bottle. The result of this test is transmitted to the medical review officer without regard to the cutoff values as listed in the NIDA guidelines. The medical review officer shall honor such a request if made within seventy-two hours of the employee's having actual notice that he or she tested positive.

(8) Action taken by the employer as the result of a positive drug test such as removal from performing a safety-sensitive function is not stayed pending the result of the second test.

(9) If the result of the second test is negative, the medical review officer shall cancel the positive results of the first test.

E. All samples collected for drug testing shall be packaged, sealed, labeled, and transported with the proper chain of custody procedures for analysis to an NIDA-certified or CAP-FUDT-certified laboratory in strict accordance with the NIDA guidelines.

F. An employer or testing entity conducting drug testing pursuant to this Chapter shall not be required to submit blind samples to an NIDA-certified or CAP-FUDT-certified laboratory.

1007. Review of drug testing results; medical review officer

A. All results of drug testing shall be reported directly from the laboratory to a qualified medical review officer as provided in this Section.

B. Confirmed positives on pre-employment drug testing may be reviewed by the medical review officer. If the employer chooses not to confirm a positive test result of a pre-employment drug screen test, the employer shall notify the pre-employment applicant of the positive drug screen result and shall offer the applicant the opportunity to pay for confirmation of that test and a review of that confirmation test by a medical review officer. The medical review officer shall review all confirmed positive drug testing results of employees and report such results to the employer in compliance with the NIDA guidelines or pursuant to statutory or regulatory authority granted under R.S. 23:1081 et seq. and R.S. 23:1601 et seq. Negative results need not be reviewed by the medical review officer, and these negative results shall be reported to the appropriate representative of the employee.

C. Adulterated specimens shall be reported as such to the medical review officer with clarification as to the specific nature of the adulteration. The medical review officer shall contact the individual who submitted the specimen as outlined in the NIDA guidelines before making a final decision to verify a positive or report an adulteration.

D. Employers who have a drug testing program in effect on January 1, 1991 and who annually conduct ten thousand or more drug tests shall not be required to utilize a medical review officer.

1008. Initial testing; screening laboratories; guidelines

A.

(1) Screening laboratories performing only the initial testing shall be inspected and approved by the bureau of health services financing, health standards section of the Department of Health and Hospitals. In no event shall such inspection be conducted more than once each year. Upon approval, the Department of Health and Hospitals shall issue a certificate to the screening laboratory. As a condition for approval, screening laboratories shall successfully participate in a proficiency testing program for any screened drugs listed in R.S. 49:1002(A), and shall maintain records to assure ongoing quality assurance, quality control, and equipment maintenance. The department shall refuse or revoke the certification of any screening laboratory which is not in compliance with the provisions of this Chapter.

(2) The department shall be authorized to impose an inspection fee, not to exceed two hundred fifty dollars per inspection, to provide for the administrative costs of inspection, approval, and certification. However, the fee shall be charged for only one inspection during any year.

(3) The Department of Health and Hospitals shall promulgate rules and regulations relative to the ongoing inspection, approval, and certification of screening laboratories and shall adopt an administrative appeal procedure for any screening laboratory for which certification is refused or revoked.

B. Only screening procedures acceptable to the Department of Health and Hospitals shall be used by screening laboratories.

C. Screening laboratories shall collect split samples in strict accordance with the provisions of this Chapter. Following collection of split samples, the first sample shall be sealed, labeled, and stored in strict accordance with the NIDA guidelines. The second sample shall be analyzed according to temperature, pH, specific gravity, and initial testing, using procedures that are in accordance with the NIDA guidelines. Specimens shall be examined for adulteration.

D. Except in pre-employment drug screening, the specimens that test positive on the initial screening or are adulterated shall be recorded as such and the first sample of the split specimen collection shall be forwarded to an NIDA-certified or a CAP-FUDT-certified laboratory in strict accordance with the NIDA guidelines for initial and confirmatory testing in accordance with this Part.

E. Except in pre-employment drug screening, the results of the initial screening drug test may not be used as a basis for rendering permanent mandatory or discretionary consequences to the individual submitting the specimen.

F. Laboratory screening personnel shall comply with personnel requirements to provide reasonable assurance of accuracy of test results.

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.

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.

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.

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.

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