November 30, 2021

Volume XI, Number 334

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November 29, 2021

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Health Care Worker Drug Testing Bill Advances in New Hampshire

The first law in the nation to require the widespread drug testing of health care employees may be on its way to passage, as the New Hampshire House of Representatives has passed by a vote of 289-48, without debate, “An Act relative to the drug-free workplaces for licensed health care facilities and providers,” on January 22.  It seeks to foster the safety and protection of patients and health care workers “by promoting and maintaining a substance-free work environment and discouraging the illegal use and diversion of controlled substances by health care workers.” 

The measure (H.B. 597-FN) would mandate that licensed entities establish “procedures for drug testing which shall include, at a minimum, testing where reasonable suspicion exists,” as part of a broader “drug misuse and diversion prevention policy” providing for the “prevention, detection, and resolution of controlled substance abuse, misuse and diversion.” The policy would apply to “employees, contractors, and agents of the facility who provide direct or hands on care to clients when acting within the scope of their employment or representation”; the facility would have to designate an employee or interdisciplinary team of employees to be responsible for the policy.  Random testing would have been required in the original version of the bill. 

The bill is intended to offer flexibility to health care facilities and providers “to develop and adopt a workplace standard appropriate to its size, the nature of the services provided, and its particular setting.”  Nevertheless, in addition to drug testing, the bill specifies that substance abuse policies shall include the education of health care workers, , procedures for monitoring the storage, distribution and procurement of inventory if controlled substances are stored, dispensed or administered “at the health care setting,” procedures for voluntary self-referral by addicted employees, procedures for co-worker reporting, procedures for employee assistance, provisions for confidentiality, a process for investigation, reporting, and resolution of drug misuse or diversion, and consequences for violation of the policy. Laboratories and collection stations are exempted. 

The proposed law does not define “reasonable suspicion,” unlike some drug testing laws elsewhere.  (The DOT Federal Motor Carrier Safety Administration’s rules, governing the testing of millions of CDL drivers, and which are sometimes used as a benchmark for non-regulated substance abuse testing policies, suggest that reasonable suspicion may involve suspected policy violations based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors” of the worker.  The federal rules also require that supervisors and managers who make reasonable suspicion determinations be trained to recognize the signs of possible substance abuse.) 

The bill reportedly follows a Hep C outbreak where a travelling radiology technician stole syringes containing a narcotic painkiller intended for hospital patients with which he injected himself, then refilled the syringes with saline to be used on the patients, knowing he was infected with the pathogen.  The technician was convicted and sentenced recently to prison.

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 39
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About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm
Principal

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

631-247-4611
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