Tennessee S Drug-Free Workplace Program

Tennessee S Drug-Free Workplace Program

Although Tennessee does not generally require or prohibit private employers from conducting workplace drug and alcohol testing, it has implemented a drug-free workplace program that is voluntary for most employers. If an employer implements a drug-free workplace program in accordance with Tennessee’s requirements, the employer may qualify for certain workers’ compensation premium reduction benefits.

However, employers with five or more employees that contract with the state or any local government to provide construction services must comply with the drug-free workplace program, and are not eligible for a workers’ compensation premium credit.

Tennessee’s Drug-Free Workplace Program

Tennessee’s drug-free workplace program applies to all Tennessee employers that are covered by Tennessee workers’ compensation laws. For most employers, the program is voluntary and provides employers that implement a drug-free workplace program with a five percent premium credit on their workers' compensation insurance policies.

However, employers with five or more employees that contract with the state or local government to provide construction services must comply with Tennessee’s drug-free workplace program. These employers are not eligible for a workers’ compensation premium credit, and must submit an affidavit stating their compliance with the drug-free workplace program at the time of the bid.

General Requirements for Tennessee’s Voluntary Program

To qualify for the premium credit, the employer’s drug-free workplace program must contain all of the following:

  • Required drug or alcohol testing of employees and job applicants;
  • A written policy statement;
  • Utilization of a medical review officer (MRO);
  • Employee education;
  • Supervisor training; and
  • Minimum confidentiality standards.

A drug or alcohol test can use tissue, blood, breath, urine or other product of the human body capable of revealing the presence of a drug/alcohol or their metabolites.

Required Drug and Alcohol Testing

To qualify for a workers’ compensation premium credit, an employer’s drug-free workplace program must require:

  • Job applicants to submit to testing following a conditional offer of employment (unless the employee is a former, temporary, leased or seasonal employee, or has tested negative in the 12 months preceding the date employment is to begin);
  • Employees to submit to reasonable suspicion testing;
  • Employees to submit to routinely scheduled employee fitness-for-duty testing, if the testing is the employer’s established policy;

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Drug and Alcohol Testing Laws

  • Employees to submit to follow-up testing following the employee’s entrance into an employee assistance program or rehabilitation program as the result of a positive test (unless the employee voluntarily enters a program, then follow-up testing is optional); and
  • Employees to submit to testing following an on-the-job injury.

Random testing is allowed, but not required, to qualify for the premium credit.

Written Policy Statement

An employer that implements a drug-free workplace program must provide a one-time written policy statement to all employees and applicants at least 60 days prior to testing. The policy statement must include all of the following:

  • A general statement of the employer's policy on employee drug and alcohol abuse, identifying:
  • The types of testing an employee or applicant may be required to submit to;
  • A list of all classes of drugs that the employer will test for; and
  • The actions the employer may take on the basis of a positive confirmed test result;
  • A statement advising employees or applicants of Tennessee's drug-free workplace program rules;
  • A general statement concerning confidentiality;
  • The consequences of refusing to submit to testing;
  • A list of employee assistance programs and local rehabilitation programs;
  • A statement that an employee or applicant may contest or explain any positive confirmed test result to an MRO within five days after written notification of the test result, including:
  • Procedures for reporting prescription and nonprescription drug use to the MRO; and
  • A statement that the MRO will report the positive test result to the employer if the employee or applicant's explanation or challenge is unsatisfactory;
  • A statement regarding any applicable collective bargaining agreement or contract; and
  • A statement notifying employees and applicants that it is a condition of employment to refrain from reporting to work or working while under the influence of drugs or alcohol.

A notice of the employer's drug or alcohol testing policy must be posted in a conspicuous location on the employer's premises. A sample notice is available on the Tennessee Department of Labor’s (TN DOL) website. Copies of the written policy statement must be made available for inspection during regular business hours in the employer's personnel office or other suitable locations. Additionally, a notice of testing must be included on all vacancy announcements for positions which are subject to testing.

Medical Review Officers (MRO)

An employer's drug-free workplace program must use an MRO for all workplace drug and alcohol testing. An MRO is a licensed physician who is employed or contracted by an employer and:

  • Has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures;
  • Verifies positive, confirmed test results; and
  • Is trained to interpret and evaluate a positive test result in relation to the employee’s medical history or any other relevant biomedical information.

The MRO acts as an agent of the employer, and should be used to review all positive tests with the employee or applicant before the employer is advised of the test results.

Employee Education

An employer’s drug-free workplace program must include a one-hour annual employee education and awareness program about substance abuse and its effects on the workplace.

Suggested topics include:

  • A general explanation about the addictive disease of substance abuse; and
  • The effects and dangers of the commonly abused substances in the workplace.

Supervisor Training

An employer’s drug-free workplace program must also provide all supervisory personnel with annual supervisor training in a two-hour session. Suggested topics include:

  • How to recognize signs of employee substance abuse;
  • How to document and corroborate signs of employee substance abuse; and
  • How to refer employees for treatment.

The annual training session may be held either on one specific date or during two one-hour training sessions held on different dates.

Confidentiality Standards

An employer's drug-free workplace program must be implemented according to Tennessee's confidentiality standards. All information, interviews, reports, statements, memoranda and test results received through a drug or alcohol testing program must be kept confidential by the employer, unless the tested employee consents to its disclosure in writing.

An exception exists to Tennessee’s confidentiality standards where a release is compelled by a state agency or court, or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. However, information on test results may not be used in any criminal proceeding against an employee or applicant. Information released in violation of Tennessee’s confidentiality standards is inadmissible as evidence in the proceeding.

Additionally, employers must notify the parent or legal guardian of a minor of the results of the minor’s drug or alcohol test.

Testing Procedures

To qualify for the workers’ compensation premium credit, the employer’s testing procedures must comply with the following minimum standards. Generally, all specimens must be tested in a laboratory using chain of custody procedures to ensure proper recordkeeping, handling, labeling and identification.

All types of workplace drug and alcohol testing must include testing for all of the following substances:

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Drug and Alcohol Testing Laws

  • Amphetamines;
  • Cannabinoids (THC or marijuana);
  • Cocaine;
  • Opiates;
  • Phencyclidine (PCP);
  • 6-Acetylmorphine (heroin);
  • MDMA (ecstasy).

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Drug and Alcohol Testing Laws

Alcohol testing is optional for job applicants, and is only required for employees who hold safety-sensitive positions, or if the test is based on reasonable suspicion. A safety-sensitive position involves a safety-sensitive function where impairment presents risk to co-workers or other persons, or constitutes an immediate and direct threat to public health or safety (such as positions requiring employees to carry a firearm, perform life-threatening procedures, work with confidential information or controlled substances, or pay attention to avoid injury or death to another person).

Confirmation Testing

Any initial test having a positive result must be verified by a confirmation test and by an MRO before it is reported to an employer.

An employee or applicant must be permitted to contest or explain any positive confirmed test result to the MRO within five days after written notification of the test result, including submitting any information that he or she considers relevant to the test (such as disclosure of recently used prescription or nonprescription medication). If the explanation is unsatisfactory to the MRO, the MRO will report the confirmed positive test result to the employer.

Reasonable Suspicion Testing

Within seven days following testing based on reasonable suspicion, an employer must disclose in writing the circumstances that led to the reasonable suspicion. A copy of the disclosure must be given to the employee upon request, and the original disclosure must be kept confidential and retained by the employer for at least one year.

Follow-up Testing

If follow-up testing is required, it must be done at least once per year for two years after completion of the program. The employer must not give the employee advance notice of a follow-up testing date.

Liability for the Cost of Testing

The employer must pay the cost of the initial and confirmation drug tests which are required by the employer. The employee or applicant must pay the cost of any additional drug tests which are not required by the employer.

Employee Protections

According to Tennessee’s fair employment laws, an employer cannot legally terminate, discipline or discriminate against an employee for voluntarily seeking drug or alcohol treatment, as long as the employee has not previously:

  • Tested positive for drug or alcohol use;
  • Entered into an employee assistance program for drug- or alcohol-related problems; or
  • Entered into a rehabilitation program (although employers are not required to permit or provide any rehabilitation program).

Likewise, an employer may not discharge, discipline, refuse to hire, discriminate against or request or require rehabilitation of an employee or applicant on the sole basis of a positive test result unless the test has been verified by a confirmation test and an MRO.

However, an employer may discharge or discipline an employee, or refuse to hire an applicant, who:

  • Refuses to submit to a lawful drug or alcohol test; or
  • Receives a confirmed positive test for:
  • An illegal drug or alcohol; or
  • A medication that is otherwise legal, but that the employee/applicant does not hold a valid prescription for.

Unless a collective bargaining agreement provides otherwise, an employer may select the employee assistance program or rehabilitation program, if the employer pays the cost of the employee’s participation in the program.

Consequences for Employers

Tennessee's drug-free workplace program is a voluntary program, meaning there generally are no civil or criminal penalties for employers that do not comply with the requirements. If the employer does not establish a drug-free workplace program according to Tennessee law, the employer will not qualify for the workers' compensation premium credit. Likewise, there is no private right of action for violations of Tennessee's voluntary drug testing laws.

However, if an employer with five or more employees that provides construction services to the state or local government does not maintain a drug-free workplace program, the employer is prohibited from entering into another contract with any local government or state agency for a certain period of time. The length of the prohibition depends on the number of previous violations, as follows:

  • For a first violation, until the employer can prove compliance;
  • For a second violation, at least three months from the date the violation was discovered, and until the employer complies with the program;

•For a third violation, at least one year from the date the violation was discovered, and until the employer complies with the program.

Other Drug Testing Laws

In addition to state law, transportation employees in Tennessee, such as drivers of commercial motor vehicles, must comply with federal law. The U.S. Department of Transportation (DOT) Federal Motor Carrier Safety Administration’s (FMCSA) drug and alcohol testing regulations govern workplace drug testing for these employees. For more information on the FMCSA’s alcohol and drug testing regulations, visit the FMCSA website.

More Information

To apply for a premium credit or for additional information on Tennessee’s drug-free workplace program, visit the TN DOL website.

Please contact Morgan, Trevathan & Gunn Insurance, Inc. for more information on drug and alcohol testing in Tennessee.

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