Puerto Rico Drug Testing and Workers’ Comp Laws

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[Editor Note:  The information contained below was last updated in 2011 and is currently outdated.  New laws are passed and changed frequently.  This information is provided for general educational purposes only, IT IS NOT INTENDED TO PROVIDE LEGAL OR OTHER PROFESSIONAL ADVISE.   Always consult your legal or medical professionals before making any decisions. For the most up to date drug laws including Marijuana @ Work, visit the Drug & Alcohol Compliance Center]

GENERAL COMMENTS: 
This is a “mandatory” jurisdiction, meaning, if an employer chooses to conduct drug or alcohol testing such tests must be conducted per Commonwealth law.

POLICY:  MUST have written “program”; MUST 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 . . . 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. 

NOTICE:  Written notice to employees and applicants is required, (including any amendments) by unspecified “delivery”, at least 60 days before first beginning; Policy must reference the existence of the law (Sec. 161-161h). 

COSTS:  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.

CONSEQUENCES:  MUST confirm all initial screen results.  MAY NOT discharge on the
FIRST positive (unless refuses/fails to complete rehab. or another positive). 

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.

WHO:  Applies to any employee/applicant drug/alcohol test within the Commonwealth,  EXCEPT federally mandated tests.  Applies to public employers.

WHAT: Not specified, although drug is defined as any controlled substance.

WHERE:  All testing MUST be performed at an approved lab; NO on-site testing is permitted.

WHEN:  Permitted tests include: 

1.  Applicants: As a pre-condition for recruitment and as part of a general physical-medical examination, required from all candidates for employment.

2.  Post-accident: attributable to the employee, in connection with his/her functions and during working hours. The employee shall not be submitted to the controlled substances detection tests if he/she is not in full control of his/her mental faculties because of the accident, unless a medical order provides otherwise.

3.  Random:  Every employer may establish a random “draw” program.

4.  Reasonable suspicion:
Is the moral conviction that a specific person is under the effects, the influence, or is a drug user, regardless of whether the fact is established afterwards or not. Said suspicion must be grounded on observable and objective facts; reasonable and individualized suspicion must be established by at least two (2) supervisors of the employee, of which one shall be a direct supervisor. Must test w/in 24 hours. (law doesn’t specify w/in 24 hours of what).

5.  Follow-Up: If an employee, in the course of his/her work, is admitted to a rehabilitation program, the employer may require such employee to submit to follow-up tests as needed.

HOW:  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 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.

OTHER COMMONWEALTH PECULIARITIES:   

• Public Employers are excluded from this law.
• Physician (MRO) is contracted by the lab; only reviews opiate positives. Other positives the donor has right to submit relevant information to the lab for consideration.
• Employer must advise employee in writing of right to have retest at employee’s lab of choice (and employee expense); if retest analysis is negative then employer can have 3^rd analysis (employee picks lab from among 3 selected by employer); both are bound by this 3^rd lab analysis.
• No employee can be tested more than twice per year.
• Employer must test the following jobs:
  • (a) Employees working in the gunsmith business.
  • (b) Every person who for pay, controls or drives any railroad train, motor vehicle used to transport
    passengers regardless of its capacity; any motor vehicle used to haul cargo on any public road; or any vehicle used to transport passengers or cargo by air or water.
  • (c) Security guards.
  • (d) Employees whose functions include the handling and control of drugs and controlled substances,
    explosives, gases, dangerous, inflammable, radioactive, toxic, high voltage materials or similar substances.
• EAP required.