S T A T E O F N E W Y O R K
________________________________________________________________________
7641
I N S E N A T E
May 22, 2014
___________
Introduced by Sen. DIAZ -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the labor law, in relation to drug and alcohol 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 AND ALCOHOL TESTING OF POLICE OFFICERS
SECTION 745. DEFINITIONS.
746. DRUG AND ALCOHOL TESTING OF POLICE OFFICERS.
747. TESTING PROCEDURES.
748. CONFIDENTIALITY.
749. RELATION TO COLLECTIVE BARGAINING.
750. APPLICABILITY.
751. SEVERABILITY.
S 745. DEFINITIONS. WHEN USED IN THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
1. "ALCOHOL" MEANS ANY BEVERAGE LISTED IN SECTION THREE OF THE ALCO-
HOLIC BEVERAGE CONTROL LAW.
2. "CONTROLLED SUBSTANCE" OR "DRUG" MEANS ANY ITEM OR SUBSTANCE LISTED
IN SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
3. "EMPLOYEE" OR "POLICE OFFICER" MEANS A POLICE OFFICER AS DEFINED IN
SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW WHO IS EMPLOYED IN A CITY
WITH A POPULATION OF ONE MILLION OR MORE.
4. "EMPLOYER" MEANS THE CITY WITH A POPULATION OF ONE MILLION OR MORE
WHICH EMPLOYS THE POLICE OFFICER WHO IS THE SUBJECT OF A TEST FOR THE
PRESENCE OF ALCOHOL OR A CONTROLLED SUBSTANCE.
5. "LABORATORY" MEANS A PUBLIC OR PRIVATE LABORATORY WHICH PERFORMS
FORENSIC DRUG TESTING AND WHICH IS NOT OWNED OR OPERATED BY THE EMPLOY-
ER.
6. "FIREARM" MEANS ANY FIREARM, RIFLE, SHOTGUN OR MACHINE GUN, ALL AS
DEFINED IN SECTION 265.00 OF THE PENAL LAW.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00742-01-3
S. 7641 2
S 746. DRUG AND ALCOHOL TESTING OF POLICE OFFICERS. 1. A POLICE
OFFICER SHALL SUBMIT TO A CHEMICAL TEST IN ACCORDANCE WITH PROVISIONS OF
THIS SECTION OF ONE OR MORE OF THE FOLLOWING: BREATH, BLOOD, URINE OR
SALIVA, FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT
OF HIS OR HER BLOOD WHEN ANY ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES
APPLIES:
(A) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER EMPLOYMENT
AS A POLICE OFFICER, DISCHARGES A FIREARM AND SUCH DISCHARGE RESULTS IN
SERIOUS PHYSICAL INJURY OR DEATH OF ANOTHER, AND, IN THE COURSE OF THE
INITIAL INVESTIGATION OF SUCH DISCHARGE, ANY CREDIBLE EVIDENCE SUGGESTS
THAT SUCH DISCHARGE MAY HAVE BEEN CARRIED OUT UNLAWFULLY OR IMPROPERLY;
(B) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER EMPLOYMENT
AS A POLICE OFFICER, DISCHARGES A FIREARM AND SUCH OFFICER HAS HAD A
PRIOR DETERMINATION OF MISCONDUCT INVOLVING AN EXCESSIVE USE OF FORCE OR
AN ABUSE OF POLICE POWERS; OR
(C) REASONABLE SUSPICION EXISTS TO BELIEVE THAT SUCH POLICE OFFICER,
WHILE IN THE COURSE OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, HAS
UNLAWFULLY INGESTED DRUGS, OR HAS CONSUMED ALCOHOL WHILE IN THE COURSE
OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, OR HAS CONSUMED ALCOHOL TO
SUCH A DEGREE THAT HIS OR HER ABILITY TO SAFELY PERFORM THE DUTIES
ATTENDANT TO SUCH EMPLOYMENT HAVE BEEN IMPAIRED.
THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION SHALL NOT
APPLY TO ANY POLICE OFFICER WHO DISCHARGES A FIREARM DURING THE COURSE
OF FIREARMS PROFICIENCY TRAINING OR FIREARMS PROFICIENCY QUALIFICATION.
2. CHEMICAL TESTING AUTHORIZED BY THIS SECTION SHALL BE ADMINISTERED
AS SOON AS POSSIBLE BUT IN NO EVENT MORE THAN THREE HOURS AFTER ANY OF
THE CIRCUMSTANCES DESCRIBED IN SUBDIVISION ONE OF THIS SECTION HAVE
OCCURRED. FAILURE BY SUCH POLICE OFFICER TO COMPLY WITH SUCH CHEMICAL
TESTING REQUIREMENTS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION
SHALL SUBJECT SUCH OFFICER TO DISCIPLINARY PROCEEDINGS.
S 747. TESTING PROCEDURES. 1. THE EMPLOYER SHALL PROVIDE ALL EMPLOYEES
WITH A WRITTEN POLICY IDENTIFYING THOSE INSTANCES UNDER WHICH A DRUG AND
ALCOHOL TEST SHALL BE ADMINISTERED AND THE PROCEDURES TO BE FOLLOWED.
2. ALL SAMPLE ANALYSIS SHALL BE CONDUCTED BY A LABORATORY WHICH
PERFORMS FORENSIC DRUG TESTING.
3. ALL EMPLOYERS AND LABORATORIES ENGAGED IN THE COLLECTION, HANDL-
ING, TESTING OR STORAGE OF SAMPLES FOR THE PURPOSES OF THIS ARTICLE
SHALL ADHERE TO THE 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 SHALL SIMULTANEOUSLY COLLECT TWO SAMPLES IN SEPARATE
CONTAINERS AND PROMPTLY SUBMIT BOTH TO A LABORATORY. 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 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 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
S. 7641 3
QUANTITATIVE DATA REGARDING THE DETECTED CONTROLLED SUBSTANCE,
CONTROLLED SUBSTANCE METABOLITES OR ALCOHOL.
7. A LABORATORY SHALL 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 OR ALCOHOL 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;
(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 OR
ALCOHOL WHICH MAY HAVE BEEN PERFORMED ON THE OTHER SAMPLE.
S. 7641 4
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 HEALTH AND THE COMMISSIONER OF CRIMI-
NAL JUSTICE SERVICES WITHIN THIRTY DAYS OF THE FINAL DISPOSITION OF SUCH
A PROCEEDING.
S 748. 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.
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 749. 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 750. APPLICABILITY. THE PROVISIONS OF THIS ARTICLE SHALL ONLY APPLY
TO POLICE OFFICERS EMPLOYED IN A CITY WITH A POPULATION OF ONE MILLION
OR MORE.
S 751. 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 ninetieth day after it shall
have become a law, provided, however, effective immediately the division
of criminal justice services shall be authorized to adopt any such rules
and regulations deemed necessary to effect the provisions of this act.