(a) To the extent permitted by law, a covered employer who
voluntarily establishes a drug-free workplace is required to conduct
the following types of drug or alcohol tests:
(1) Job Applicant Drug and Alcohol Testing. A
covered employer must require job applicants to submit to a drug
test after a conditional offer of employment and may use a refusal
to submit to a drug test or a positive confirmed drug test as a
basis for refusing to hire a job applicant. An employer may test
job applicants for alcohol, but is not required to, after a conditional
offer of employment. Limited testing of applicants, only if it
is based on a reasonable classification basis, is permissible in
accordance with a Workers' Health and Safety Division of the Workers'
Compensation Commission rule;
(2) Reasonable-suspicion drug and alcohol testing. A
covered employer must require an employee to submit to reasonable-suspicion
drug or alcohol testing. A written record shall be made of the
observations leading to a controlled-substances reasonable suspicion
test within twenty-four (24) hours of the observed behavior or
before the results of the test are released, whichever is earlier.
A copy of this documentation shall be given to the employee upon
request, and the original documentation shall be kept confidential
by the covered employer pursuant to § 11-14-109 and shall
be retained by the covered employer for at least one (1) year;
(3) Routine Fitness-For-Duty drug testing. (A)
A covered employer shall require an employee to undergo drug or
alcohol testing, if as a part of the employer's written policy,
the test is conducted as a routine part of a routinely scheduled
employee fitness-for-duty medical examination or is scheduled routinely
for all members of an employment classification or group. Provided,
a public employer may require scheduled, periodic testing only
of employees who:
(i) Are police or peace officers;
(ii) Have drug interdiction responsibilities;
(iii) Are authorized to carry firearms;
(iv) Are engaged in activities which directly affect the
safety of others;
(v) Work in direct contact with inmates in the custody of
the Department of Correction; or
(vi) Work in direct contact with minors who have been adjudicated
delinquent or who are in need of supervision in the custody of
the Department of Human Services.
(B) This subdivision does not require a drug or alcohol
test if a covered employer's personnel policy on July 1, 2000,
does not include drug or alcohol testing as part of a routine fitness-for-duty
medical examination. The test shall be conducted in a nondiscriminatory
manner. Routine fitness-for-duty drug or alcohol testing of employees
does not apply to volunteer employee health screenings, employee
wellness programs, programs mandated by governmental agencies,
or medical surveillance procedures that involve limited examinations
targeted to a particular body part or function;
(4) Follow-up Drug Testing. If the employee
in the course of employment enters an employee assistance program
for drug-related or alcohol-related problems or a drug or alcohol
rehabilitation program, the covered employer must require the employee
to submit to a drug or alcohol test, as appropriate, as a follow-up
to the program, unless the employee voluntarily entered the program.
In those cases, the covered employer has the option to not require
follow-up testing. If follow-up testing is required, it must be
conducted at least one (1) time per year for a two-year period
after completion of the program. Advance notice of a follow-up
testing date must not be given to the employee to be tested; and
(5) Post-accident testing. After an accident
which results in an injury, the covered employer shall require
the employee to submit to a drug or alcohol test in accordance
with the provisions of this chapter.
(b) This chapter does not preclude an employer from conducting
any lawful testing of employees for drugs or alcohol that is in
addition to the minimum testing required under this chapter.
History. Acts 1999, No. 1552, § 6.
