Drug testing in public employment: when it applies and what a positive means

It is the law governing controlled-substance testing for Puerto Rico government employees. Worth saying up front because it defines who this guide serves: the law’s title is “in Public Sector Employment,” and it does not regulate private employers. For a public employee, its value lies in two things: the closed list of circumstances in which you can be required to test, and the rule that a first corroborated positive is not grounds for dismissal.

It covers officials and employees of Puerto Rico Government agencies, and the law includes provisions for officials and employees of the Judicial and Legislative Branches. It does not regulate private sector employment.

• Being an official or employee of a public sector agency covered by the law.Verified against the official source
• That one of the six circumstances the law lists for administering the test applies.Verified against the official source

Information pending verification.

1. 1

   Step 1: The six circumstances, and only those

   The law lists them and leaves no open-ended clause. A workplace accident related to your duties and during working hours, directly attributable to you. Individualized reasonable suspicion of at least two supervisors, one of them your direct supervisor. That you hold a sensitive post, in which case testing may be periodic. That you are the designated Liaison who orders testing, also with periodic testing. That you tested positive on a first test and follow-up testing is required. Or that you choose to submit voluntarily, “without it having been required in any way as a condition to keep the job or to enjoy the rights and benefits legally due you.”

2. 2

   Step 2: Twenty-four hours and thirty-two hours

   The two deadlines worth memorising. After an accident attributable to the employee, “testing must be administered within twenty-four (24) hours from the moment the accident occurred.” On reasonable suspicion, “testing must be administered no later than thirty-two (32) hours from the last observation or perception of the abnormal or erratic conduct generating the individualized reasonable suspicion.”

3. 3

   Step 3: Suspicion needs two trained supervisors

   Here is a defence few people know. Reasonable suspicion requires at least two supervisors, one of them the direct one. And the article on programme requirements adds that the agency must educate and train supervisors “on the type of observable conduct in an official or employee that controlled-substance use may produce, for the purposes of forming individualized reasonable suspicion. If supervisors do not receive the education and training required here, their suspicions shall be presumed rebuttably unreasonable and as such may be challenged in due course in an adjudicative process.”

4. 4

   Step 4: Before the test: what they must warn you

   The law lists written warnings and concrete rights. You shall be warned in writing that, if you wish, “part of the sample may be given to a laboratory of your choosing so you have the opportunity to conduct an independent analysis of it.” You will have the opportunity to report before the test any data relevant to interpreting the result, “including the use of prescription and non-prescription drugs.” And you shall be warned that you have the right to obtain a copy of the results, to challenge the reasonable suspicion determination that led to the testing, to challenge corroborated positive results at a hearing, and to present evidence that you have not illegally used controlled substances.

5. 5

   Step 5: A positive goes to a second analysis and a Medical Reviewer

   A positive is not simply reported. “When the result is positive, the sample must undergo a second corroboration analysis and a qualified Medical Review Officer shall study it, taking into account the medications the official or employee reported using, and shall certify the result according to their observations and analysis.” That is why reporting your medications beforehand matters.

6. 6

   Step 6: A first positive is not grounds for dismissal

   This is the central rule. “An agency official or employee who tests positive on a first controlled-substance detection test shall be immediately suspended, without depriving them of their salary or remuneration, until a hearing with minimum procedural guarantees is held.” And then: “An official or employee may not be dismissed or removed from the post they hold for a corroborated positive result on the initial test.” The suspension is without loss of pay.

7. 7

   Step 7: The five exceptions to no-dismissal

   The law lists them and they are worth reading in full. Dismissal or removal is allowed: when by the very nature of the job the detected condition is irremediably incompatible with effectively performing the duties — and the law declares irremediably incompatible with controlled-substance use “every post or position in any of the Public Safety Agencies and Programs”; when the employee holds a sensitive post; when they are the Liaison; when they refuse to take part in the agency’s adopted rehabilitation plan having been required to; and when the employee is a repeat offender. In the last four cases the law says “suspension without pay or any other sanction or corrective measure provided by regulation may be chosen.”

8. 8

   Step 8: The hearing and its twenty days

   In all cases where corrective measures, disciplinary actions, suspensions, removals or dismissals are ordered, the minimum procedural guarantees of notice and hearing must be met, “where the official or employee has the opportunity to be heard, may present evidence in their favor and challenge the evidence presented against them, and may present the defences available to them. That hearing must be held no later than twenty (20) days from notice of the corrective measure, disciplinary action, suspension, removal or dismissal.”

9. 9

   Step 9: Refusing activates a presumption against you

   Short and direct: “An official or employee’s unjustified refusal to submit to controlled-substance detection testing, when so required under this Act, shall activate the rebuttable presumption that the result would have been positive.” The key word is “unjustified,” and the presumption is rebuttable.

10. 10

    Step 10: Details that work in your favor

    Three, and verifiable. The time it takes to administer the test “shall be considered time worked.” Samples “may not undergo any type of testing other than that needed to detect controlled substances.” And the incident records of employees who are not tested “within a term of six (6) months from when the first incident was logged shall be destroyed.” In addition, the programme must be notified to each employee at least thirty (30) days before its effective date, and the same applies to subsequent amendments to the regulation.

The process happens inside your own agency: the law requires each one to create a Controlled Substance Detection Program, with its own regulation, and to designate an Employee Assistance Liaison. The law further provides that the Institute of Forensic Sciences “shall be the first option considered by public departments, agencies, corporations and instrumentalities” to administer and analyse the tests, keeping competitive prices, and that only if the Institute cannot match or better a bona fide competitor’s price, or lacks resources for a given contract, may agencies contract another qualified entity. If your matter is employment discrimination or retaliation, those have their own guides.

• Believing this law covers private employment: its title limits it to the public sector.
• Not reporting your medications before the test: the law gives you that opportunity and the Medical Reviewer takes them into account.
• Not asking for part of the sample: you have the right to have it given to a lab of your choosing for an independent analysis.
• Accepting removal for a first corroborated positive: the law prohibits it outside five exceptions.
• Refusing without justification: it activates the rebuttable presumption the result would have been positive.
• Not checking whether the supervisors were trained: without that training their suspicions are presumed unreasonable.

These are the government pages this guide is based on.

• Oficina de Administración y Transformación de los Recursos Humanos (OATRH)

  OATRH

  bvirtualogp.pr.gov