S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6986
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 28, 2017
                                ___________
 
 Introduced  by  M.  of  A.  SEPULVEDA  --  read once and referred 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.
   §  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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07281-01-7

              

 A. 6986                             2
 
   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.
   §  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.
   § 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

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 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
 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

 A. 6986                             4
 
 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.
   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.
   § 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.
   § 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.
   § 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.
   § 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.
   §  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.