Bill Text: NY S04927 | 2017-2018 | General Assembly | Introduced
Bill Title: Requires police officers who have discharged their weapon in the course of their employment to be tested for the presence of drugs and/or alcohol within three hours of such discharge; establishes procedures to protect the integrity of such process; applies to officers employed in cities with a population of 1,000,000 or more.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-03-03 - REFERRED TO LABOR [S04927 Detail]
Download: New_York-2017-S04927-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4927 2017-2018 Regular Sessions IN SENATE March 3, 2017 ___________ Introduced by Sen. DIAZ -- read twice and ordered printed, and when printed to be committed 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: 1 Section 1. The labor law is amended by adding a new article 20-D to 2 read as follows: 3 ARTICLE 20-D 4 DRUG AND ALCOHOL TESTING OF POLICE OFFICERS 5 Section 745. Definitions. 6 746. Drug and alcohol testing of police officers. 7 747. Testing procedures. 8 748. Confidentiality. 9 749. Relation to collective bargaining. 10 750. Applicability. 11 751. Severability. 12 § 745. Definitions. When used in this article, the following terms 13 shall have the following meanings: 14 1. "Alcohol" means any beverage listed in section three of the alco- 15 holic beverage control law. 16 2. "Controlled substance" or "drug" means any item or substance listed 17 in section thirty-three hundred six of the public health law. 18 3. "Employee" or "police officer" means a police officer as defined in 19 section 1.20 of the criminal procedure law who is employed in a city 20 with a population of one million or more. 21 4. "Employer" means the city with a population of one million or more 22 which employs the police officer who is the subject of a test for the 23 presence of alcohol or a controlled substance. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07281-01-7S. 4927 2 1 5. "Laboratory" means a public or private laboratory which performs 2 forensic drug testing and which is not owned or operated by the employ- 3 er. 4 6. "Firearm" means any firearm, rifle, shotgun or machine gun, all as 5 defined in section 265.00 of the penal law. 6 § 746. Drug and alcohol testing of police officers. 1. A police 7 officer shall submit to a chemical test in accordance with provisions of 8 this section of one or more of the following: breath, blood, urine or 9 saliva, for the purpose of determining the alcoholic and/or drug content 10 of his or her blood when any one or more of the following circumstances 11 applies: 12 (a) such police officer, while in the course of his or her employment 13 as a police officer, discharges a firearm and such discharge results in 14 serious physical injury or death of another, and, in the course of the 15 initial investigation of such discharge, any credible evidence suggests 16 that such discharge may have been carried out unlawfully or improperly; 17 (b) such police officer, while in the course of his or her employment 18 as a police officer, discharges a firearm and such officer has had a 19 prior determination of misconduct involving an excessive use of force or 20 an abuse of police powers; or 21 (c) reasonable suspicion exists to believe that such police officer, 22 while in the course of his or her employment as a police officer, has 23 unlawfully ingested drugs, or has consumed alcohol while in the course 24 of his or her employment as a police officer, or has consumed alcohol to 25 such a degree that his or her ability to safely perform the duties 26 attendant to such employment have been impaired. 27 The provisions of paragraphs (a) and (b) of this subdivision shall not 28 apply to any police officer who discharges a firearm during the course 29 of firearms proficiency training or firearms proficiency qualification. 30 2. Chemical testing authorized by this section shall be administered 31 as soon as possible but in no event more than three hours after any of 32 the circumstances described in subdivision one of this section have 33 occurred. Failure by such police officer to comply with such chemical 34 testing requirements in accordance with the provisions of this section 35 shall subject such officer to disciplinary proceedings. 36 § 747. Testing procedures. 1. The employer shall provide all employees 37 with a written policy identifying those instances under which a drug and 38 alcohol test shall be administered and the procedures to be followed. 39 2. All sample analysis shall be conducted by a laboratory which 40 performs forensic drug testing. 41 3. All employers and laboratories engaged in the collection, handl- 42 ing, testing or storage of samples for the purposes of this article 43 shall adhere to the procedures for the custody, integrity and security 44 of such samples that comply with regulations promulgated by the division 45 of criminal justice services. 46 4. At the request of the employee, the employer shall permit a repre- 47 sentative of the employee's collective bargaining unit to be present at 48 the time of any sample collection. In the event that such a represen- 49 tative is not available within a reasonable period of time, a co-employ- 50 ee within the same collective bargaining unit may be designated by the 51 employee to act as a representative for this purpose. 52 5. The employer shall simultaneously collect two samples in separate 53 containers and promptly submit both to a laboratory. One sample shall be 54 preserved in a secure facility in such a way that it may be subsequently 55 tested for the presence of a controlled substance in the event testingS. 4927 3 1 of the other sample indicates a positive result for the presence of such 2 a substance. 3 6. Any sample that initially tests positive for the presence of a 4 controlled substance or alcohol shall, where applicable, also be 5 subjected to a confirmatory test by gas chromatography with mass spec- 6 trometry or an equivalent scientifically accepted method that provides 7 quantitative data regarding the detected controlled substance, 8 controlled substance metabolites or alcohol. 9 7. A laboratory shall report to an employer that a sample is positive 10 only if both the initial test and the confirmation test are positive for 11 the presence of a controlled substance. 12 8. Within thirty days of receiving a report indicating a positive test 13 result, the employer shall provide the employee tested with an opportu- 14 nity to have the other preserved sample tested for the presence of a 15 controlled substance or alcohol at a laboratory designated by the 16 employee. The test may be at the expense of the employee. The sample and 17 test in such event shall remain subject to the testing, preservation and 18 reporting requirements of this section and the result of any such test 19 shall be provided to the employee and, at the employee's written 20 request, his or her collective bargaining representative. 21 9. All test results from the laboratory shall be in writing and shall 22 contain, at a minimum, the following information: 23 (a) the method of analysis for both the initial and any confirmatory 24 test; 25 (b) the results of each test; 26 (c) the sensitivity of the methodology employed for confirmation, the 27 detection level, meaning the cut-off or measure used to distinguish 28 positive and negative samples, on both the initial screening and confir- 29 mation procedures if the sample is found to be positive; 30 (d) the accuracy and precision of the quantitative data reported for 31 the confirmation test; however, in the case of a negative test, the 32 report shall specify only that the test was negative for controlled 33 substances; and 34 (e) the name and address of the laboratory performing the analysis, 35 the date that the test was administered and analysis was performed. 36 10. After receipt by the employer of a report from a laboratory 37 containing the result of a test, the employer shall provide written 38 notification of such result, whether positive or negative, to the 39 employee. The notification shall be provided within the employee's first 40 five working days immediately following the receipt of such report by 41 the employer during which the employee is in personal attendance each 42 day at a facility operated by the employer. 43 11. Within thirty days after the receipt of a report containing a 44 negative test result, the employer shall destroy all records, reports 45 and other documents in its possession related to the test and shall not 46 thereafter make reference to the test in any employment-related 47 proceedings. 48 12. The laboratory shall preserve all samples in a secure facility for 49 sixty days after the issuance of a test report and, upon written request 50 for further preservation by the employer or employee received within 51 such period, for such an additional period of time as may be specified 52 in the request. 53 13. In the course of any disciplinary or judicial proceedings involv- 54 ing a positive test result, an employee shall have the opportunity to 55 present evidence on the significance and accuracy of the test results. 56 An employee may also present evidence that the procedures followed withS. 4927 4 1 respect to the collection, handling, testing or storage of the sample 2 destroyed the validity of the sample or the test result. An employee 3 shall also be given the opportunity, at his or her request, to present 4 the result of any test for the presence of a controlled substance or 5 alcohol which may have been performed on the other sample. 6 14. Any employer or laboratory that is found, through litigation, 7 arbitration or administrative proceeding, to have generated or relied 8 upon a positive test result of the subject employee that is either false 9 or not supported by laboratory documentation shall report that finding 10 in writing to the commissioner of health and the commissioner of crimi- 11 nal justice services within thirty days of the final disposition of such 12 a proceeding. 13 § 748. Confidentiality. 1. Employers, laboratories and the agents 14 thereof who receive or have access to information concerning drug tests 15 and their results shall keep all such information confidential. Except 16 where the release of such information is compelled by subpoena or court 17 order, any such information shall be released only upon a written 18 consent voluntarily executed by the employee. Any consent shall contain, 19 at a minimum, the following information: 20 (a) the name or names of persons authorized to obtain the information; 21 (b) the purpose of the disclosure; 22 (c) the precise information to be disclosed; and 23 (d) the duration of the consent. 24 2. This section shall not apply to proceedings in which the employee 25 is accused of a criminal violation, nor shall it apply to disciplinary 26 or judicial proceedings relating to employment, or to prospective 27 employment inquiries received from any law enforcement agency. 28 § 749. Relation to collective bargaining. 1. Nothing in this article 29 shall be construed to prohibit, as a subject of collective bargaining, 30 the establishment and terms of a program to test employees for 31 controlled substances which is consistent with the provisions of this 32 article. 33 2. Nothing in this article shall supersede any collective bargaining 34 agreement in effect on the effective date of this article. No collective 35 bargaining agreement commencing on or after the effective date of this 36 article may authorize testing of employees for controlled substances 37 unless it contains testing procedures which are consistent with the 38 provisions of this article. 39 § 750. Applicability. The provisions of this article shall only apply 40 to police officers employed in a city with a population of one million 41 or more. 42 § 751. Severability. If any provision of this article or the applica- 43 tion thereof to any employee or circumstances are held to be invalid, 44 such invalidity shall not affect other provisions or applications of 45 this article which can be given effect without the invalid provision or 46 application, and to this end the provisions of this article are severa- 47 ble. 48 § 2. This act shall take effect on the ninetieth day after it shall 49 have become a law, provided, however, effective immediately the division 50 of criminal justice services shall be authorized to adopt any such rules 51 and regulations deemed necessary to effect the provisions of this act.
