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:
    1    Section 1. The labor law is amended by adding a new  article  20-D  to
    2  read as follows:
    3                                 ARTICLE 20-D
    4                 DRUG AND ALCOHOL TESTING OF POLICE OFFICERS
    5  SECTION 745. DEFINITIONS.
    6          746. DRUG AND ALCOHOL TESTING OF POLICE OFFICERS.
    7          747. TESTING PROCEDURES.
    8          748. CONFIDENTIALITY.
    9          749. RELATION TO COLLECTIVE BARGAINING.
   10          750. APPLICABILITY.
   11          751. SEVERABILITY.
   12    S  745.  DEFINITIONS.  WHEN  USED IN THIS ARTICLE, THE FOLLOWING TERMS
   13  SHALL HAVE THE FOLLOWING MEANINGS:
   14    1. "ALCOHOL" MEANS ANY BEVERAGE LISTED IN SECTION THREE OF  THE  ALCO-
   15  HOLIC BEVERAGE CONTROL LAW.
   16    2. "CONTROLLED SUBSTANCE" OR "DRUG" MEANS ANY ITEM OR SUBSTANCE LISTED
   17  IN SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
   18    3. "EMPLOYEE" OR "POLICE OFFICER" MEANS A POLICE OFFICER AS DEFINED IN
   19  SECTION  1.20  OF  THE  CRIMINAL PROCEDURE LAW WHO IS EMPLOYED IN A CITY
   20  WITH A POPULATION OF ONE MILLION OR MORE.
   21    4. "EMPLOYER" MEANS THE CITY WITH A POPULATION OF ONE MILLION OR  MORE
   22  WHICH  EMPLOYS  THE  POLICE OFFICER WHO IS THE SUBJECT OF A TEST FOR THE
   23  PRESENCE OF ALCOHOL OR A CONTROLLED SUBSTANCE.
   24    5. "LABORATORY" MEANS A PUBLIC OR PRIVATE  LABORATORY  WHICH  PERFORMS
   25  FORENSIC  DRUG TESTING AND WHICH IS NOT OWNED OR OPERATED BY THE EMPLOY-
   26  ER.
   27    6.  "FIREARM" MEANS ANY FIREARM, RIFLE, SHOTGUN OR MACHINE GUN, ALL AS
   28  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
    1    S 746. DRUG AND ALCOHOL TESTING OF POLICE OFFICERS.    1.    A  POLICE
    2  OFFICER SHALL SUBMIT TO A CHEMICAL TEST IN ACCORDANCE WITH PROVISIONS OF
    3  THIS  SECTION  OF  ONE OR MORE OF THE FOLLOWING: BREATH, BLOOD, URINE OR
    4  SALIVA, FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT
    5  OF  HIS OR HER BLOOD WHEN ANY ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES
    6  APPLIES:
    7    (A) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER  EMPLOYMENT
    8  AS  A POLICE OFFICER, DISCHARGES A FIREARM AND SUCH DISCHARGE RESULTS IN
    9  SERIOUS PHYSICAL INJURY OR DEATH OF ANOTHER, AND, IN THE COURSE  OF  THE
   10  INITIAL  INVESTIGATION OF SUCH DISCHARGE, ANY CREDIBLE EVIDENCE SUGGESTS
   11  THAT SUCH DISCHARGE MAY HAVE BEEN CARRIED OUT UNLAWFULLY OR IMPROPERLY;
   12    (B) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER  EMPLOYMENT
   13  AS  A  POLICE  OFFICER,  DISCHARGES A FIREARM AND SUCH OFFICER HAS HAD A
   14  PRIOR DETERMINATION OF MISCONDUCT INVOLVING AN EXCESSIVE USE OF FORCE OR
   15  AN ABUSE OF POLICE POWERS; OR
   16    (C) REASONABLE SUSPICION EXISTS TO BELIEVE THAT SUCH  POLICE  OFFICER,
   17  WHILE  IN  THE  COURSE OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, HAS
   18  UNLAWFULLY INGESTED DRUGS, OR HAS CONSUMED ALCOHOL WHILE IN  THE  COURSE
   19  OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, OR HAS CONSUMED ALCOHOL TO
   20  SUCH  A  DEGREE  THAT  HIS  OR  HER ABILITY TO SAFELY PERFORM THE DUTIES
   21  ATTENDANT TO SUCH EMPLOYMENT HAVE BEEN IMPAIRED.
   22    THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION SHALL NOT
   23  APPLY TO ANY POLICE OFFICER WHO DISCHARGES A FIREARM DURING  THE  COURSE
   24  OF FIREARMS PROFICIENCY TRAINING OR FIREARMS PROFICIENCY QUALIFICATION.
   25    2.  CHEMICAL  TESTING AUTHORIZED BY THIS SECTION SHALL BE ADMINISTERED
   26  AS SOON AS POSSIBLE BUT IN NO EVENT MORE THAN THREE HOURS AFTER  ANY  OF
   27  THE  CIRCUMSTANCES  DESCRIBED  IN  SUBDIVISION  ONE OF THIS SECTION HAVE
   28  OCCURRED. FAILURE BY SUCH POLICE OFFICER TO COMPLY  WITH  SUCH  CHEMICAL
   29  TESTING  REQUIREMENTS  IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION
   30  SHALL SUBJECT SUCH OFFICER TO DISCIPLINARY PROCEEDINGS.
   31    S 747. TESTING PROCEDURES. 1. THE EMPLOYER SHALL PROVIDE ALL EMPLOYEES
   32  WITH A WRITTEN POLICY IDENTIFYING THOSE INSTANCES UNDER WHICH A DRUG AND
   33  ALCOHOL TEST SHALL BE ADMINISTERED AND THE PROCEDURES TO BE FOLLOWED.
   34    2. ALL SAMPLE ANALYSIS  SHALL  BE  CONDUCTED  BY  A  LABORATORY  WHICH
   35  PERFORMS FORENSIC DRUG TESTING.
   36    3.    ALL EMPLOYERS AND LABORATORIES ENGAGED IN THE COLLECTION, HANDL-
   37  ING, TESTING OR STORAGE OF SAMPLES FOR  THE  PURPOSES  OF  THIS  ARTICLE
   38  SHALL  ADHERE  TO THE PROCEDURES FOR THE CUSTODY, INTEGRITY AND SECURITY
   39  OF SUCH SAMPLES THAT COMPLY WITH REGULATIONS PROMULGATED BY THE DIVISION
   40  OF CRIMINAL JUSTICE SERVICES.
   41    4. AT THE REQUEST OF THE EMPLOYEE, THE EMPLOYER SHALL PERMIT A  REPRE-
   42  SENTATIVE  OF THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT TO BE PRESENT AT
   43  THE TIME OF ANY SAMPLE COLLECTION. IN THE EVENT THAT  SUCH  A  REPRESEN-
   44  TATIVE IS NOT AVAILABLE WITHIN A REASONABLE PERIOD OF TIME, A CO-EMPLOY-
   45  EE  WITHIN  THE SAME COLLECTIVE BARGAINING UNIT MAY BE DESIGNATED BY THE
   46  EMPLOYEE TO ACT AS A REPRESENTATIVE FOR THIS PURPOSE.
   47    5. THE EMPLOYER SHALL SIMULTANEOUSLY COLLECT TWO SAMPLES  IN  SEPARATE
   48  CONTAINERS AND PROMPTLY SUBMIT BOTH TO A LABORATORY. ONE SAMPLE SHALL BE
   49  PRESERVED IN A SECURE FACILITY IN SUCH A WAY THAT IT MAY BE SUBSEQUENTLY
   50  TESTED  FOR  THE PRESENCE OF A CONTROLLED SUBSTANCE IN THE EVENT TESTING
   51  OF THE OTHER SAMPLE INDICATES A POSITIVE RESULT FOR THE PRESENCE OF SUCH
   52  A SUBSTANCE.
   53    6. ANY SAMPLE THAT INITIALLY TESTS POSITIVE  FOR  THE  PRESENCE  OF  A
   54  CONTROLLED  SUBSTANCE  OR  ALCOHOL  SHALL,  WHERE  APPLICABLE,  ALSO  BE
   55  SUBJECTED TO A CONFIRMATORY TEST BY GAS CHROMATOGRAPHY WITH  MASS  SPEC-
   56  TROMETRY  OR  AN EQUIVALENT SCIENTIFICALLY ACCEPTED METHOD THAT PROVIDES
       S. 7641                             3
    1  QUANTITATIVE  DATA  REGARDING   THE   DETECTED   CONTROLLED   SUBSTANCE,
    2  CONTROLLED SUBSTANCE METABOLITES OR ALCOHOL.
    3    7.  A LABORATORY SHALL REPORT TO AN EMPLOYER THAT A SAMPLE IS POSITIVE
    4  ONLY IF BOTH THE INITIAL TEST AND THE CONFIRMATION TEST ARE POSITIVE FOR
    5  THE PRESENCE OF A CONTROLLED SUBSTANCE.
    6    8. WITHIN THIRTY DAYS OF RECEIVING A REPORT INDICATING A POSITIVE TEST
    7  RESULT, THE EMPLOYER SHALL PROVIDE THE EMPLOYEE TESTED WITH AN  OPPORTU-
    8  NITY  TO  HAVE  THE  OTHER PRESERVED SAMPLE TESTED FOR THE PRESENCE OF A
    9  CONTROLLED SUBSTANCE OR  ALCOHOL  AT  A  LABORATORY  DESIGNATED  BY  THE
   10  EMPLOYEE. THE TEST MAY BE AT THE EXPENSE OF THE EMPLOYEE. THE SAMPLE AND
   11  TEST IN SUCH EVENT SHALL REMAIN SUBJECT TO THE TESTING, PRESERVATION AND
   12  REPORTING  REQUIREMENTS  OF THIS SECTION AND THE RESULT OF ANY SUCH TEST
   13  SHALL BE PROVIDED  TO  THE  EMPLOYEE  AND,  AT  THE  EMPLOYEE'S  WRITTEN
   14  REQUEST, HIS OR HER COLLECTIVE BARGAINING REPRESENTATIVE.
   15    9.  ALL TEST RESULTS FROM THE LABORATORY SHALL BE IN WRITING AND SHALL
   16  CONTAIN, AT A MINIMUM, THE FOLLOWING INFORMATION:
   17    (A) THE METHOD OF ANALYSIS FOR BOTH THE INITIAL AND  ANY  CONFIRMATORY
   18  TEST;
   19    (B) THE RESULTS OF EACH TEST;
   20    (C)  THE SENSITIVITY OF THE METHODOLOGY EMPLOYED FOR CONFIRMATION, THE
   21  DETECTION LEVEL, MEANING THE CUT-OFF  OR  MEASURE  USED  TO  DISTINGUISH
   22  POSITIVE AND NEGATIVE SAMPLES, ON BOTH THE INITIAL SCREENING AND CONFIR-
   23  MATION PROCEDURES IF THE SAMPLE IS FOUND TO BE POSITIVE;
   24    (D)  THE  ACCURACY AND PRECISION OF THE QUANTITATIVE DATA REPORTED FOR
   25  THE CONFIRMATION TEST; HOWEVER, IN THE CASE  OF  A  NEGATIVE  TEST,  THE
   26  REPORT  SHALL  SPECIFY  ONLY  THAT  THE TEST WAS NEGATIVE FOR CONTROLLED
   27  SUBSTANCES; AND
   28    (E) THE NAME AND ADDRESS OF THE LABORATORY  PERFORMING  THE  ANALYSIS,
   29  THE DATE THAT THE TEST WAS ADMINISTERED AND ANALYSIS WAS PERFORMED.
   30    10.  AFTER  RECEIPT  BY  THE  EMPLOYER  OF  A REPORT FROM A LABORATORY
   31  CONTAINING THE RESULT OF A TEST,  THE  EMPLOYER  SHALL  PROVIDE  WRITTEN
   32  NOTIFICATION  OF  SUCH  RESULT,  WHETHER  POSITIVE  OR  NEGATIVE, TO THE
   33  EMPLOYEE. THE NOTIFICATION SHALL BE PROVIDED WITHIN THE EMPLOYEE'S FIRST
   34  FIVE WORKING DAYS IMMEDIATELY FOLLOWING THE RECEIPT OF  SUCH  REPORT  BY
   35  THE  EMPLOYER  DURING  WHICH THE EMPLOYEE IS IN PERSONAL ATTENDANCE EACH
   36  DAY AT A FACILITY OPERATED BY THE EMPLOYER.
   37    11. WITHIN THIRTY DAYS AFTER THE RECEIPT  OF  A  REPORT  CONTAINING  A
   38  NEGATIVE  TEST  RESULT,  THE EMPLOYER SHALL DESTROY ALL RECORDS, REPORTS
   39  AND OTHER DOCUMENTS IN ITS POSSESSION RELATED TO THE TEST AND SHALL  NOT
   40  THEREAFTER   MAKE  REFERENCE  TO  THE  TEST  IN  ANY  EMPLOYMENT-RELATED
   41  PROCEEDINGS.
   42    12. THE LABORATORY SHALL PRESERVE ALL SAMPLES IN A SECURE FACILITY FOR
   43  SIXTY DAYS AFTER THE ISSUANCE OF A TEST REPORT AND, UPON WRITTEN REQUEST
   44  FOR FURTHER PRESERVATION BY THE EMPLOYER  OR  EMPLOYEE  RECEIVED  WITHIN
   45  SUCH  PERIOD,  FOR SUCH AN ADDITIONAL PERIOD OF TIME AS MAY BE SPECIFIED
   46  IN THE REQUEST.
   47    13. IN THE COURSE OF ANY DISCIPLINARY OR JUDICIAL PROCEEDINGS  INVOLV-
   48  ING  A  POSITIVE  TEST RESULT, AN EMPLOYEE SHALL HAVE THE OPPORTUNITY TO
   49  PRESENT EVIDENCE ON THE SIGNIFICANCE AND ACCURACY OF THE  TEST  RESULTS.
   50  AN  EMPLOYEE MAY ALSO PRESENT EVIDENCE THAT THE PROCEDURES FOLLOWED WITH
   51  RESPECT TO THE COLLECTION, HANDLING, TESTING OR STORAGE  OF  THE  SAMPLE
   52  DESTROYED  THE  VALIDITY  OF  THE SAMPLE OR THE TEST RESULT. AN EMPLOYEE
   53  SHALL ALSO BE GIVEN THE OPPORTUNITY, AT HIS OR HER REQUEST,  TO  PRESENT
   54  THE  RESULT  OF  ANY  TEST FOR THE PRESENCE OF A CONTROLLED SUBSTANCE OR
   55  ALCOHOL WHICH MAY HAVE BEEN PERFORMED ON THE OTHER SAMPLE.
       S. 7641                             4
    1    14. ANY EMPLOYER OR LABORATORY  THAT  IS  FOUND,  THROUGH  LITIGATION,
    2  ARBITRATION  OR  ADMINISTRATIVE  PROCEEDING, TO HAVE GENERATED OR RELIED
    3  UPON A POSITIVE TEST RESULT OF THE SUBJECT EMPLOYEE THAT IS EITHER FALSE
    4  OR NOT SUPPORTED BY LABORATORY DOCUMENTATION SHALL REPORT  THAT  FINDING
    5  IN  WRITING TO THE COMMISSIONER OF HEALTH AND THE COMMISSIONER OF CRIMI-
    6  NAL JUSTICE SERVICES WITHIN THIRTY DAYS OF THE FINAL DISPOSITION OF SUCH
    7  A PROCEEDING.
    8    S 748. CONFIDENTIALITY. 1.  EMPLOYERS,  LABORATORIES  AND  THE  AGENTS
    9  THEREOF  WHO RECEIVE OR HAVE ACCESS TO INFORMATION CONCERNING DRUG TESTS
   10  AND THEIR RESULTS SHALL KEEP ALL SUCH INFORMATION  CONFIDENTIAL.  EXCEPT
   11  WHERE  THE RELEASE OF SUCH INFORMATION IS COMPELLED BY SUBPOENA OR COURT
   12  ORDER, ANY SUCH INFORMATION  SHALL  BE  RELEASED  ONLY  UPON  A  WRITTEN
   13  CONSENT VOLUNTARILY EXECUTED BY THE EMPLOYEE. ANY CONSENT SHALL CONTAIN,
   14  AT A MINIMUM, THE FOLLOWING INFORMATION:
   15    (A) THE NAME OR NAMES OF PERSONS AUTHORIZED TO OBTAIN THE INFORMATION;
   16    (B) THE PURPOSE OF THE DISCLOSURE;
   17    (C) THE PRECISE INFORMATION TO BE DISCLOSED; AND
   18    (D) THE DURATION OF THE CONSENT.
   19    2.  THIS  SECTION SHALL NOT APPLY TO PROCEEDINGS IN WHICH THE EMPLOYEE
   20  IS ACCUSED OF A CRIMINAL VIOLATION, NOR SHALL IT APPLY  TO  DISCIPLINARY
   21  OR  JUDICIAL  PROCEEDINGS  RELATING  TO  EMPLOYMENT,  OR  TO PROSPECTIVE
   22  EMPLOYMENT INQUIRIES RECEIVED FROM ANY LAW ENFORCEMENT AGENCY.
   23    S 749. RELATION TO COLLECTIVE BARGAINING. 1. NOTHING IN  THIS  ARTICLE
   24  SHALL  BE  CONSTRUED TO PROHIBIT, AS A SUBJECT OF COLLECTIVE BARGAINING,
   25  THE  ESTABLISHMENT  AND  TERMS  OF  A  PROGRAM  TO  TEST  EMPLOYEES  FOR
   26  CONTROLLED  SUBSTANCES  WHICH  IS CONSISTENT WITH THE PROVISIONS OF THIS
   27  ARTICLE.
   28    2. NOTHING IN THIS ARTICLE SHALL SUPERSEDE ANY  COLLECTIVE  BARGAINING
   29  AGREEMENT IN EFFECT ON THE EFFECTIVE DATE OF THIS ARTICLE. NO COLLECTIVE
   30  BARGAINING  AGREEMENT  COMMENCING ON OR AFTER THE EFFECTIVE DATE OF THIS
   31  ARTICLE MAY AUTHORIZE TESTING OF  EMPLOYEES  FOR  CONTROLLED  SUBSTANCES
   32  UNLESS  IT  CONTAINS  TESTING  PROCEDURES  WHICH ARE CONSISTENT WITH THE
   33  PROVISIONS OF THIS ARTICLE.
   34    S 750. APPLICABILITY. THE PROVISIONS OF THIS ARTICLE SHALL ONLY  APPLY
   35  TO  POLICE  OFFICERS EMPLOYED IN A CITY WITH A POPULATION OF ONE MILLION
   36  OR MORE.
   37    S 751. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE  APPLICA-
   38  TION  THEREOF  TO  ANY EMPLOYEE OR CIRCUMSTANCES ARE HELD TO BE INVALID,
   39  SUCH INVALIDITY SHALL NOT AFFECT OTHER  PROVISIONS  OR  APPLICATIONS  OF
   40  THIS  ARTICLE WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR
   41  APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE  SEVERA-
   42  BLE.
   43    S  2.  This  act shall take effect on the ninetieth day after it shall
   44  have become a law, provided, however, effective immediately the division
   45  of criminal justice services shall be authorized to adopt any such rules
   46  and regulations deemed necessary to effect the provisions of this act.