Drug Testing Law Summaries

Drug Testing Law Summaries

Maryland, Drug Testing Law Summaries

Maryland's general drug testing law is located in the Annotated Code of Maryland at Title 17, Subtitle 2. The full text of the law is available beginning at Wages-Hours ¶21-53,001 .

Drug testing is also provided for under Maryland's transportation law, which provides guidelines for drug testing of certain motor vehicle drivers. This law is located at Title 25, Subtitle 1. The full text of the law is available beginning at Wages-Hours ¶21-53,002 .

Additionally, there is an alcohol-free and drug-free workplace program law for marine facilities in the state (Annotated Code of Maryland, Transportation Article, Section 6-102.1, as added by Ch. 651, L. 1996) (full text is available beginning at Wages-Hours ¶21-53,004 ); and adult dependent care programs may require testing (Annotated Code of Maryland, Health-General Article, Title 19, Subtitle 19, Sec. 19-1903).

DEFINITIONS

“Certification” means the approval granted by the Department of Health and Mental Hygiene for a laboratory to engage in job-related alcohol or controlled dangerous substance testing (Sec. 17-214(a)(2), as amended by S. 652, L. 2001, effective October 1, 2001).

For purposes of Maryland's marine facilities alcohol-and drug-free workplace law, “drug” means (Sec. 6-102.1, as added by Ch. 651, L. 1996):

1. a controlled dangerous substance; and

2. a prescription drug, to the extent that the drug affects job performance and worker safety at a marine facility.

For purposes of Maryland's marine facilities alcohol-and drug-free workplace law, “employee” means any individual who is an employee, independent contractor, subcontractor, or other individual who provides labor for compensation at a marine facility for a person (Sec. 6-102.1, as added by Ch. 651, L. 1996).

For purposes of Maryland's general drug testing law, “alcohol or controlled dangerous substance testing” means a procedure used to determine whether or not a specimen contains a controlled dangerous substance or alcohol (Sec. 17-214(a)(1), as amended by S. 652, L. 2001, effective October 1, 2001).

For purposes of Maryland's marine facilities alcohol-and drug-free workplace law, “safety-sensitive employee” means an employee who operates heavy machinery. The term includes, but is not limited to, an operator of a crane, winch, or top loader, and a driver of a hustler or forklift (Sec. 6-102.1, as added by Ch. 651, L. 1996).

For purposes of Maryland's general drug testing law, “job applicant” means an individual who has applied for a position with an employer and is not currently employed by the employer (Sec. 17-214(a)(4), as amended by S. 652, L. 2001, effective October 1, 2001).

For purposes of Maryland's general drug testing law, “job-related” means any alcohol or controlled dangerous substance testing used by an employer for a legitimate business purpose (Sec. 17-214(a)(5), as amended by S. 652, L. 2001, effective October 1, 2001).

For purposes of Maryland's general drug testing law, “medical review officer” means a licensed physician with knowledge of drug abuse disorders and drug and alcohol testing (Sec. 17-214(a)(7), as amended by S. 652, L. 2001, effective October 1, 2001).

For purposes of Maryland's general drug testing law, “preliminary screening procedure” means a controlled dangerous substance test that uses a single-use test device that (Sec. 17-214(a)(8), as amended by S. 642, L. 2001, effective October 1, 2001):

1. is easily portable and can be administered at a work site or other appropriate collection site;

2. meets the requirements of the FDA for commercial distribution; and

3. meets generally accepted cutoff levels such as those in the Federal Substance Abuse and Mental Health Services Administration Guidelines for Drug-Free Workplace Testing Programs.

For purposes of Maryland's general drug testing law, “single-use test device” means the reagent-containing unit of a test system that (Sec. 17-214(a)(9), as amended by S. 642, L. 2001, effective October 1, 2001):

1. is in the form of a sealed container or cartridge that has a validity check, a nonresealable closure, or an evidentiary tape that ensures detection of any tampering;

2. is self-contained and individually packaged;

3. is discarded after each test; and

4. does not allow any test component or constituent of a test system to interact between tests.

Effective until October 1, 2003, for purposes of Maryland's general drug testing law, “specimen” means (Sec. 17-214(a)(10), as amended by S. 435, L. 2003):

1. blood derived from the human body;

2. urine derived from the human body; or

3. hair derived from the human body.

Effective October 1, 2003, for purposes of Maryland's general drug testing law, “specimen” means (Sec. 17-214(a)(10), as amended by S. 435, L. 2003, effective October 1, 2003):

1. blood derived from the human body;

2. urine derived from the human body;

3. hair derived from the human body; or

4. saliva derived from the human body.

For purposes of Maryland's general drug testing law, “laboratory” means a facility or other entity that conducts job-related alcohol or controlled dangerous substance testing (Sec. 17-214(a)(6), as amended by S. 652, L. 2001, effective October 1, 2001).

COVERAGE

Maryland's general drug testing law applies to job-related alcohol and controlled dangerous substance testing of any person, including preemployment applicants, employees, and contractors (Sec. 17-214(h), as amended by S. 652, L. 2001, effective October 1, 2001).

Certain motor vehicle drivers are covered under Maryland's transportation law (Sec. 25-111).

There is also an alcohol-and drug-free workplace program law that applies to marine facilities workers in the state (Sec. 6-102.1, as added by Ch. 651, L. 1996), and adult dependent care programs may require testing (Sec. 19-1903).

EXCEPTIONS

Maryland's general drug testing law does not apply to the following (Sec. 17-214(g), as amended by S. 652, L. 2001, effective October 1, 2001):

1. alcohol or controlled dangerous substance testing of a person under arrest or held by a law enforcement or correctional agency;

2. alcohol testing procedures conducted by a law enforcement or correctional agency on breath testing equipment certified by the State Toxicologist; or

3. controlled dangerous substance testing by a laboratory facility of a law enforcement or correctional agency that maintains laboratory testing standards comparable to the standards in this section.

Marine facilities.- Maryland's marine facilities alcohol-and drug-free workplace law does not apply to (Sec. 6-102.1, as added by Ch. 651, L. 1996):

1. employees, contractors, independent contractors, or agents of the Maryland Port Administration;

2. vessel employees, or employees of contractors or subcontractors that attend vessels, who do not load or unload cargo between a vessel and a pier, or from one stowage position to another on a vessel, at a marine facility; or

3. individuals or employees required by federal or state law to comply with 49 CFR Parts 40 and 382 of the Federal Motor Carrier Safety Regulations.

WHAT THE EMPLOYER MUST DO

General drug testing law.- Except as provided in Sec. 17-214(b)(2) below, an employer who requires any person to be tested for job-related use or abuse of any controlled dangerous substance or alcohol must (Sec. 17-214(b)(1), as amended by S. 652, L. 2001, effective October 1, 2001):

1. have the specimen tested by a laboratory that holds the required permit or, for a lab located outside of Maryland, that is certified or otherwise approved; and

2. at the time of testing, at the person's request, inform the person of the name and address of the laboratory that will test the specimen.

Except as provided in the following sentence, an employer may use a preliminary screening procedure to test a job applicant for the use or abuse of any controlled dangerous substance (Sec. 17-214(b)(2)(I)(1), as added by S. 652, L. 2001, effective October 1, 2001).

The previous sentence does not apply to an employer that has entered into a collective bargaining agreement that prohibits the employer from using a preliminary screening procedure to test a job applicant for the use or abuse of any controlled dangerous substances (Sec. 17-214(b)(2)(I)(2), as added by S. 652, L. 2001, effective October 1, 2001).

If the result of a preliminary screening procedure is positive, the employer must submit the specimen for testing by a lab as required under Sec. 17-214(b)(1) above (Sec. 17-214(b)(2)(II), as added by S. 652, L. 2001, effective October 1, 2001).

Following voluntary disclosure and documentation by an applicant of the taking of a legally prescribed medication, an employer may hire the applicant pending confirmation of a positive test result by the medical lab and review by the employer's medical review officer (Sec. 17-214(b)(2)(III), as added by S. 652, L. 2001, effective October 1, 2001).

An employer may not use a preliminary screening procedure to test an individual who is not applying for a job with that employer (Sec. 17-214(b)(2)(IV), as added by S. 652, L. 2001, effective October 1, 2001).

An employer may designate a medical lab licensed to perform job-related testing for controlled dangerous substances to also perform preliminary screening procedures on job applicants for the employer (Sec. 17-214(b)(2)(V), as added by S. 652, L. 2001, effective October 1, 2001).

An employer who requires any person to be tested for job-related reasons for the use or abuse of any controlled dangerous substance may use hair derived from the human body as a specimen only for preemployment purposes, and if an employer uses hair as a specimen, the employer may not (1) use a specimen that is longer than one and one-half inches measured from the human body; or (2) use the specimen for any purpose other than testing for controlled dangerous substances (Sec. 17-214(b)(3), as amended by S. 652, L. 2001, effective October 1, 2001).

An employer who requires any employee, contractor, or other person to be tested for job-related reasons for the use or abuse of any controlled dangerous substance or alcohol and who receives notice from the lab under Sec. 17-214(b) above that an employee, contractor, or other person has tested positive for the use or abuse of any controlled dangerous substance or alcohol must, after confirmation of the test result, provide the employee, contractor, or other person with (Sec. 17-214(c)(1), as amended by S. 652, L. 2001, effective October 1, 2001):

1. a copy of the laboratory test indicating the test results;

2. a copy of the employer's written policy on the use or abuse of controlled dangerous substances or alcohol by employees, contractors, or other persons;

3. if applicable, written notice of the employer's intent to take disciplinary action, terminate employment, or change the conditions of continued employment; and

4. a statement or copy of the statutory provisions permitting an employee to request independent testing of the same sample for verification of the test result.

The information required to be provided to the employee, contractor, or other person must be delivered to the employee, contractor, or other person either in person or by certified mail and within 30 days from the date the test was performed (Sec. 17-214(c)(2), as amended by S. 652, L. 2001, effective October 1, 2001).

An employer that uses a preliminary screening procedure to test specimens for the use or abuse of a controlled dangerous substance under this section must (Sec. 17-214(d), as amended by S. 652, L. 2001, effective October 1, 2001):

1. in using a single-use test device, collect, handle, store and ship each specimen in a manner that maintains the specimen donor's identity and confidentiality and the physical integrity of the specimen, and precludes contamination of the specimen; and

2. maintain a written record of the chain of custody of each specimen from the time that the specimen is collected until the time that the specimen is no longer needed for retesting.

A person required to submit to job-related testing may request independent testing of the same specimen for verification of the test results by a laboratory that holds an applicable permit or, if located outside of Maryland, is certified or otherwise approved under Maryland law (Sec. 17-214(e)(1), as amended by S. 652, L. 2001, effective October 1, 2001).

The person requesting an independent test must pay for the related costs (Sec. 17-214(e)(2), as amended by S. 652, L. 2001, effective October 1, 2001).

Except as provided in Sec. 17-214(i)(2) and (3) below, in the course of obtaining information for, or as a result of, job-related alcohol or controlled dangerous substance testing for an employer under this section, a lab, a physician, including a physician retained by the employer, or any other person may not reveal to the employer information regarding (Sec. 17-214(i)(1), as amended by S. 652, L. 2001, effective October 1, 2001):

1. the use of a nonprescription drug, excluding alcohol, that is not prohibited under Maryland law; or

2. the use of a medically prescribed drug, unless the person being tested is unable to establish that the drug was medically prescribed under the laws of Maryland.

These prohibitions against disclosure of information do not apply to the extent that they prevent a person from complying with the applicable provisions of the Federal Commercial Motor Vehicle Safety Act of 1986 and the Federal Motor Carrier Safety Regulations (Sec. 17-214(i)(2), as amended by S. 652, L. 2001, effective October 1, 2001).

The prohibitions against disclosure of information in the previous sentence do not apply if, prior to the administration of a preliminary screening for controlled dangerous substances, the test operator notifies the applicant that if the preliminary test is positive, the applicant may voluntarily disclose and provide documentation to the operator that the applicant is taking a legally prescribed medication (Sec. 17-214(i)(3), as added by S. 652, L. 2001, effective October 1, 2001).

An employer using preliminary screening procedures to test job applicants under this section must have a medical review officer review a positive test result after lab confirmation of the positive rest result (Sec. 17-214(j)(1), as added by S. 652, L. 2001, effective October 1, 2001).

The employer may contract for the services of an outside medical review officer if the employer does not have a medical review officer on staff (Sec. 17-214(j)(2), as added by S. 652, L. 2001, effective October 1, 2001).

An employer using preliminary screening procedures must establish a program to train individuals to collect specimens and perform controlled dangerous substance tests in the workplace (Sec. 17-214(k)(1), as added by S. 652, L. 2001, effective October 1, 2001).

The employer may designate an employee or any other individual to be trained, including any individual employed by a medical lab designated under Sec. 17-214(b)(2)(IV) above who will perform preliminary screening procedures for the employer (Sec. 17-214(k)(2), as added by S. 652, L. 2001, effective October 1, 2001).

A trainee must receive appropriate and practical instruction, which includes (Sec. 17-214(k)(3), as added by S. 652, L. 2001, effective October 1, 2001):

1. a reading of the test manufacturer's package insert sheet;

2. observing the test manufacturer's training video or receiving training from the test manufacturer;

3. completing the test manufacturer's self-administered test; and

4. the actual performance of tests and the actual interpretation of the results.

The employer must (Sec. 17-214(k)(4), as added by S. 652, L. 2001, effective October 1, 2001):

1. keep a record of the training received by each trainee; and

2. establish a procedure for training each trainee as having received the minimum training required to properly perform the test.

After the trainee has demonstrated competency in performing the test, the employer must maintain documentation that indicates that the trainee has been trained under this section (Sec. 17-214(k)(4), as added by S. 652, L. 2001, effective October 1, 2001).

If preliminary screening procedures are performed by an operator who is trained under Sec. 17-214(k) above, an employer (Sec. 17-205(d), as added by S. 652, L. 2001, effective October 1, 2001):

1. is not required to obtain a permit or to obtain a letter of exception from the Secretary of Health and Mental Hygiene under this section to perform testing; but

2. is required before performing preliminary screening procedures to register with the secretary.

The provisions of a collective bargaining agreement that concern drug testing override and preempt the provisions of this section that authorize an employer to use a preliminary screening procedure to test a job applicant (Sec. 17-214(l), as added by S. 652, L. 2001, effective October 1, 2001).

Transportation employees.- Motor Vehicle Administration motor carrier safety rules and regulations must be consistent with federal law with respect to alcohol and drug testing regulations applicable to drivers of (Sec. 25-11(f)(2)(v)):

1. vehicles with a gross vehicle weight rating over 26,000 pounds;

2. vehicles transporting hazardous materials of a type and quantity requiring placarding; and

3. vehicles designed to transport 16 or more passengers, including the driver.

Marine facilities employees.- Persons that lease space at a marine facility from the Maryland Port Administration must implement a program that (Sec. 6-102.1, as added by Ch. 651, L. 1996):

1. prohibits the sale, purchase, transfer, use, or possession of alcohol or drugs at a port facility;

2. provides a plan that includes the nondiscriminatory administration of tests for the presence of alcohol or drugs in accordance with established testing procedures, including random, reasonable cause, post-accident, and return-to-work, or post-treatment testing of safety-sensitive employees and preemployment test for the presence of drugs, of employees;

3. provides for rehabilitation programs and disciplinary and sanction procedures for individuals who violate the program;

4. provides sufficient notice to employees of testing procedures, consent, and other requirements of the program;

5. provides adequate security measures for collection, chain of custody, and handling of test material; and

6. establishes procedures for the reporting, review, and appeal of test results.

The program must generally comply with the guidelines for a drug-free workplace program established by the Maryland Center for Workplace Safety and Health (Sec. 6-102.1, as added by Ch. 651, L. 1996).

Adult dependent care programs.- An adult dependent care program may require an alcohol or controlled dangerous substance test of a potential employee (Title 19, Subtitle 19, Sec. 19-1903).

NOTICE

General drug testing law.- An employer who requires any employee, contractor, or other person to be tested for job-related reasons for the use or abuse of any controlled dangerous substance or alcohol and who receives notice that an employee, contractor, or other person has tested positive for the use or abuse of any controlled dangerous substance or alcohol must, after confirmation of the test result, provide the employee, contractor, or other person, if applicable, with written notice of the employer's intent to take disciplinary action, terminate employment, or change the conditions of continued employment (Sec. 17-214(c)(1)).

Marine facilities.- Alcohol-and drug-free workplace programs of marine facilities must provide sufficient notice to employees of testing procedures, consent, and other requirements of the program (Sec. 6-102.1, as added by Ch. 651, L. 1996).

TESTING

Lab standards.- The Department of Health and Mental Hygiene has the authority to adopt regulations governing the certification of laboratories that conduct job-related alcohol or controlled dangerous substance testing pursuant to Maryland's general drug testing law (Sec. 17-214(e)(1), as amended by S. 503, L. 1997).

In addition to any other laboratory standards, the regulations must (Sec. 17-214(e)(2), as amended by S. 503, L. 1997):

1. require that the laboratory comply with the guidelines for laboratory accreditation, if any, as set forth by the College of American Pathologists, the U.S. Health Care Financing Administration (HCFA), or any other government agency or program designated to certify or approve a laboratory that is acceptable to the Secretary of Health and Mental Hygiene;

2. require that a laboratory performing confirmation tests for controlled dangerous substances or alcohol be inspected and accredited in forensic drug analysis by the College of American Pathologists, the U.S. Health Care Financing Administration (HCFA), or any other government agency or program designated to inspect and accredit a laboratory that is acceptable to the Secretary of Health and Mental Hygiene;

3. require that, if the laboratory performs job-related drug testing, the laboratory be a participant in a program of proficiency testing of drug screening conducted by an organization acceptable to the Secretary of Health and Mental Hygiene;

4. require that the laboratory comply with any standards regarding cutoff levels for positive testing that are established by the United States Department of Health and Human Services or established by the Secretary of Health and Mental Hygiene as mandatory guidelines for workplace drug testing programs; and

5. include procedures for annual recertification and inspection.

TRAINING

See WHAT THE EMPLOYER MUST DO, above.

RECORDKEEPING

General drug testing law.-Chain of custody.- An employer that uses a preliminary screening procedure to test specimens for the use or abuse of a controlled dangerous substance under this section must maintain a written record of the chain of custody of each specimen from the time that the specimen is collected until the time that the specimen is no longer needed for retesting (Sec. 17-214(d), as amended by S. 652, L. 2001, effective October 1, 2001).

Training.- An employer using preliminary screening procedures must establish a program to train individuals to collect specimens and perform controlled dangerous substance tests in the workplace. The employer must keep a record of the training received by each trainee (Sec. 17-214(k), as added by S. 652, L. 2001, effective October 1, 2001).

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Maryland, Drug Testing Law Summaries

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