Alcohol and Drug Testing of Employees

Rhode Island has a very high standard for private or public employers of any size wishing to test current or prospective employees for drugs or alcohol.

R.I. Gen. Laws § 28-6.5-1. Testing permitted only in accordance with this section

(a) No employer or agent of any employer shall, either orally or in writing, request, require, or subject any employee to submit a sample of his or her urine, blood, or other bodily fluid or tissue for testing as a condition of continued employment unless that test is administered in accordance with the provisions of this section. Employers may require that an employee submit to a drug test if:

(1) The employer has reasonable grounds to believe based on specific aspects of the employee’s job performance and specific contemporaneous observations, capable of being articulated, concerning the employee’s appearance, behavior or speech that the employee’s use of controlled substances is impairing his or her ability to perform his or her job;

(2) The employee provides the test sample in private, outside the presence of any person;

(3) Employees testing positive are not terminated on that basis, but are instead referred to a substance abuse professional (a licensed physician with knowledge and clinical experience in the diagnosis and treatment of drug related disorders, a licensed or certified psychologist, social worker, or EAP professional with like knowledge, or a substance abuse counselor certified by the National Association of Alcohol and Drug Abuse Counselors (all of whom shall be licensed in Rhode Island)) for assistance; provided, that additional testing may be required by the employer in accordance with this referral, and an employee whose testing indicates any continued use of controlled substances despite treatment may be terminated;

(4) Positive tests of urine, blood or any other bodily fluid or tissue are confirmed by a federally certified laboratory by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate;

(5) The employer provides the employee, at the employer’s expense, the opportunity to have the sample tested or evaluated by an independent testing facility and so advises the employee;

(6) The employer provides the employee with a reasonable opportunity to rebut or explain the results;

(7) The employer has promulgated a drug abuse prevention policy which complies with requirements of this chapter; and

(8) The employer keeps the results of any test confidential, except for disclosing the results of a “positive” test only to other employees with a job-related need to know, and to defend against any legal action brought by the employee against the employer.

(b) Any employer who subjects any person employed by him or her to this test, or causes, directly or indirectly, any employee to take the test, except as provided for by this chapter, shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($ 1,000) or not more than one year in jail, or both.

(c) In any civil action alleging a violation of this section, the court may:

(1) Award punitive damages to a prevailing employee in addition to any award of actual damages;

(2) Award reasonable attorneys’ fees and costs to a prevailing employee; and

(3) Afford injunctive relief against any employer who commits or proposes to commit a violation of this section.

(d) Nothing in this chapter shall be construed to impair or affect the rights of individuals under chapter 5 of this title.

(e) Nothing in this chapter shall be construed to:

(1) Prohibit or apply to the testing of drivers regulated under 49 C.F.R. § 40.1 et seq and 49 C.F.R. part 382 if that testing is performed pursuant to a policy mandated by the federal government; or

(2) Prohibit an employer in the public utility or mass transportation industry from requiring testing otherwise barred by this chapter if that testing is explicitly mandated by federal regulation or statute as a condition for the continued receipt of federal funds.

R.I. Gen. Laws § 28-6.5-2. Testing of prospective employees

(a) Except as provided in subsections (b) and (c) of this section, an employer may require a job applicant to submit to testing of his or her blood, urine or any other bodily fluid or tissue if:

(1) The job applicant has been given an offer of employment conditioned on the applicant’s receiving a negative test result;

(2) The applicant provides the test sample in private, outside the presence of any person; and

(3) Positive tests of urine, blood, or any other bodily fluid or tissue are confirmed by a federal certified laboratory by means of gas chromatography/mass spectrometry or technology recognized as being at least as scientifically accurate.

(b) The pre-employment drug testing authorized by this section shall not extend to job applicants for positions with any agency or political subdivision of the state or municipalities, except for applicants seeking employment as a law enforcement or correctional officer, firefighter, or any other position where that testing is required by federal law or required for the continued receipt of federal funds.

(c) An employer shall not be required to comply with the conditions of testing under subsection (a) of this section to the extent they are inconsistent with federal law.