The substance abuse on-site screening test shall be administered according to the instructions of the manufacturer and this section:
(1) Every employer using a substance abuse on-site screening test shall administer the test according to the package insert that accompanies the substance abuse on-site screening test;
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Substance abuse on-site screening test: means a portable substance abuse test that meets the requirements of the United States Food and Drug Administration for commercial distributionor is manufactured by a facility that is minimally certified as meeting the ISO 13485 standard established by the International Organization for Standardization and which may be used by an employer in the workplace. See Hawaii Revised Statutes 329B-2
Substance abuse test: means any testing procedure designed to take and analyze body fluids or materials from the body for the purpose of measuring the amount of drugs, alcohol, or the metabolites of drugs in the sample tested. See Hawaii Revised Statutes 329B-2
Third party: means any person, agency, employer or any other entity who requests substance abuse testing of another person or persons. See Hawaii Revised Statutes 329B-2
(2) Any indication of the presence of drugs, alcohol, or the metabolites of drugs by the substance abuse on-site screening test shall not be used to deny or deprive a person of employment or any benefit, or result in any adverse action against the employee or prospective employee, unless a substance abuse test is conducted according to § 329B-5 and the requirements of paragraph (3) are met;(3) Upon the indication of the presence of drugs, alcohol, or the metabolites of drugs by the substance abuse on-site screening test, the employer shall have the employee or prospective employee report within four hours to a laboratory licensed by the department under § 329B-4 and be tested under § 329B-5. The employer shall bear the cost of the laboratory referral. An employee or prospective employee who fails to report for the substance abuse test may be denied or deprived of employment or any benefit, or have adverse action taken against the employee or prospective employee for refusing or failing to report for the substance abuse test; provided that the employer has provided to the employee or prospective employee written notice stating that:
(A) At the time of the substance abuse on-site screening test, the employer followed the procedures under section 329B-5.5;(B) The employee or prospective employee was informed that the employee or prospective employee may refuse to submit to the substance abuse test; and(C) If the employee or prospective employee refuses or fails to submit to the substance abuse test, the employer may take adverse employment action against the employee or prospective employee;(4) The operator who administers the substance abuse on-site screening test shall have been trained in the use and administering of the on-site screening test by the manufacturer of the on-site screening test or the manufacturer’s designee; and(5) Any information concerning the substance abuse on-site screening test shall be strictly confidential. Such information shall not be released to anyone without the informed written consent of the individual tested and shall not be released or made public upon subpoena or any other method of discovery, except that information relating to a positive on-site screening test result of an individual shall be disclosed to the individual, a third party, the laboratory to which the individual is referred, and the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual tested and arising from the positive on-site screening test result.
