…PUERTO RICO LABOR AND EMPLOYMENT LAW
Drug Testing Act
Applicable Law: Act No. 59 of August 8, 1997, 29 LPRA §161 et seq.
Puerto Rico Law does not impose mandatory drug testing for employees; therefore private employers are not obligated to set up drug testing programs. However, any employer who wishes to set up a drug-testing program should comply with the requirements established by the law to regulate tests to detect controlled substances in the private sector.
Employers that comply with the requirements of Act No.59 of August 8, 1997, limit their liability against employee lawsuits. However, there are exceptions to the limitations of liability established by Act 59. These exceptions include all acts that cause harm to the employee as a consequence of the employer’s fraud, fault, or negligence. Nonetheless, the limitations apply if the employee decides to accept benefits under the workmen’s compensation statute in relation to the damages suffered as a result of the employer´s fraud, fault, or negligence.
Employers who establish the drug testing programs must comply with the following requirements (Act No. 59 of August 8, 1997, 29 LPRA §161b):
- Tests shall be conducted in a uniform and consistent manner for all employees and candidates for employment;
- There must be a written program, adopted by the employer and notified to the employees, which shall contain its effective date and shall identify the law that authorizes its adoption. This notice shall be given at least sixty days before its effective date and to candidates for employment upon filing a job application with the employer.
- Tests shall be administered according to the program adopted by the employer.
- The employer shall pay 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 days.
- The drug tests shall be made through a urine sample, except for those circumstances in which it is not possible. The sample shall not be submitted to any type of test other than that which is strictly necessary for the detection of controlled substances.
- 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.
- 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 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.
- After a positive confirmed result, an employee is entitled to contact another laboratory to obtain a retest of the original sample.
- 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.
- 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.
- 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 of over the counter drugs.
No dismissal may occur as a result of a first positive drug test, though an employer’s policy may state that the employee must submit to a rehabilitation program as a condition for continued employment. Upon return from, and successful completion of, an appropriate rehabilitation program, the employee will be subject to the necessary follow-up drug testing.
In the event an employee refuses to participate in a rehabilitation program, or if the results of any drug tests conducted after the completion of a rehabilitation program are positive, the employer may impose the corresponding disciplinary measures pursuant to its rules of conduct. Upon imposing the disciplinary measures, the employer may do so taking into account the relationship of the employee’s conduct with his/her functions, the effect on the good and normal functioning of the employer’s business or enterprise, and the risk to the safety of other employees and the public in general.