P.R. Laws tit. 29, § 161b
A program for the detection of controlled substances shall meet the following requirements:
(a) Tests shall be conducted in a uniform and consistent manner for all employees and candidates for employment; and pursuant to the terms of a written program, adopted by the employer and notified to the employees through delivery of a copy of the same, which shall contain its effective date and shall identify the law that authorizes its adoption. This notice shall be given at least sixty (60) days before its effective date, and to candidates for employment upon filing a job application with the employer. The same terms and conditions shall apply to notices and delivery of copies made with respect to subsequent amendments thereto. However, any testing program for the detection of controlled substances established and implemented prior to the effective date of this chapter and which meets these requirements, shall be deemed to be a valid testing program.
(b) Tests shall be administered according to the program adopted by the employer, through regulations, which shall be notified to all employees and candidates for employment. The regulations shall contain the following:
(1) A statement on the illegal use of controlled substances which includes a description of the sanctions and penalties that apply to the production, distribution, possession or illegal use of controlled substances under the laws of the Government of Puerto Rico and the United States of America.
(2) An indication to the effects that the possession, distribution, use, consumption and illegal traffic of controlled substances is conduct forbidden in the company.
(3) A plan developed by the employer to educate and inform the employees on the health risks associated to the illegal use of controlled substances.
(4) The adoption and description of the programs for assistance, treatment or orientation on the rehabilitation available to the employees.
(5) The employer’s rules of conduct on the use of controlled substances by his/her employees and a description of the sanctions that said employer shall impose on the employees if such rules of conduct are violated or if the test is positive for the use of a controlled substance. Such rules shall be uniform and non-discriminatory. The employer may impose sanctions on employees for violations of said rules of conduct subject to the provisions of §§ 185a et seq. of this title. The first positive test result of the use of controlled substances shall not constitute just cause for dismissal of an employee without first requiring and allowing the employee to attend an appropriate rehabilitation program. The employer may also require an employee with a positive test result to periodically submit to additional tests as part of the rehabilitation program. In the event that the employee expressly refuses to participate in said rehabilitation program, or if the result of said additional tests is positive, the employer may impose the corresponding disciplinary actions, pursuant to the rules of conduct. In imposing said disciplinary measures, the employer shall do so taking into account the relationship between the employee’s conduct and his/her functions, its effect on the proper and normal function of the enterprise, and the risk to the safety of other employees and the public in general. The unjustified refusal of an employee to submit to a urine test, when it is so required pursuant to the provisions of this chapter, shall constitute prima facie evidence that the result would have been positive, and shall result in the application disciplinary measures. All employees who have been granted the opportunity to participate in an assistance and rehabilitation program in order to fight the use of controlled substances shall have the obligation to collaborate and comply with all the requirements of the program in order to achieve their rehabilitation within the shortest term possible. Noncompliance with any of the obligations imposed by the program shall constitute conduct that could bring about the imposition of disciplinary measures.
(6) A warning that the employees or candidates for employment shall be subject to tests for the detection of controlled substances.
(7) A detailed description of the procedures to be followed to conduct the tests, including the mechanism for the settlement of disputes over the result of said tests.
(8) A provision to the effects that any information, interview, report, statement or memorandum on the result of the tests shall be deemed to be confidential information. No positive result of controlled substances detection tests administered by order of the employer shall be used as evidence in a criminal suit against the employee, unless it is used by said employee as evidence in his/her defense.
(c) The employer shall defray the expenses of the controlled substances detection tests. The employer shall deem as working time, the time needed to submit to the tests and shall compensate the employees for such time, correspondingly. The absences of an employee to attend a rehabilitation program may be charged, in the first place, on sick leave, and then on vacation leave. Should all paid leave be exhausted, the employee shall be entitled to leave without pay for a maximum of thirty (30) days.
(d) The drug tests shall be made through an urine sample, except for those circumstances in which it is not possible to take the same and shall be administered in accordance with scientifically accepted analytical and sample custody chain procedures, so that the privacy of the employee may be protected to the maximum, and pursuant to the Mandatory Guidelines for Federal Workplace Drug Testing Program. The sample shall not be submitted to any type of test other than that which is strictly necessary for the detection of controlled substances. The urine test shall be used, for which there shall be no on site observer while the employee provides the sample; but one person shall take the sample handed by the employee at the exact moment that the employee abandons the bathroom. For greater reliability, the temperature of the sample shall be taken in the presence of the employee who has been submitted to the test, as a measure to determine if the sample has been adulterated. In the event that the adulteration of a sample is determined, the same shall be discarded and the employee shall be requested to provide a new one, this time in the presence of a person of his/her same sex, who is a member of the laboratory personnel.
(e) The tests made on the sample shall be conducted pursuant to scientifically acceptable analytical procedures for such type of test, by a certified laboratory, as recommended in the Mandatory Guidelines for Federal Workplace Drug Testing Program. Every sample with a positive result shall be submitted to a second corroborative analysis by the gas spectrometry chromatography method. Only after having obtained a positive corroborated result of the presence of opiates in the urine, shall a supervising physician, contracted by the laboratory conducting the tests, ask the person whose result was positive if he/she is taking any medication that could have some effect on the result of the test, provided there is no test that will allow the differentiation of the different types of opiates by analytical methods.
(f) The employee shall be advised in writing that he/she is entitled to contract another laboratory to obtain a second result from the same sample, and should he/she wish to do so, the minimum amount of the obtained sample needed shall be transferred to an independent laboratory contracted by him/her, to conduct the tests.
(g) If the test conducted by the employer is positive, and the second test made at the request of the employee is negative, the employer may suggest three laboratories, of which the employee must choose one, so that a third test can be conducted at the expense of the employer. The result of this third test shall be binding on both parties.
(h) Every employee may be submitted to a maximum of two tests each year, unless a duly corroborated positive result has been obtained from one of such tests or as part of a counseling, treatment or rehabilitation program.
(i) Before the employer can take any disciplinary action based on the positive result of a test, said result shall have to be verified through a confirming laboratory test. The employee or candidate for employment shall have the opportunity to notify said laboratory of any information which is relevant to the interpretation of said result, including the use of prescribed or over the counter drugs.
History —Aug. 8, 1997, No. 59, § 5, eff. 180 days after Aug. 8, 1997.