As used in this chapter, unless the context otherwise requires: 

(1)  "Alcohol" has the same meaning in this chapter as when used in the federal regulations describing the procedures used for the testing of alcohol by programs operating pursuant to the authority of the Department of Transportation, currently compiled at 49 C.F.R. Part 40; 

(2)  "Alcohol test" means an analysis of breath or blood or any other analysis which determines the presence and level or absence of alcohol as authorized by the Department of Transportation in its rules and guidelines concerning alcohol testing and drug testing; 

(3)  "Chain of custody" refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances and providing for accountability at each stage in handling, testing, and storing specimens and reporting test results; 

(4)  "Confirmation test", "confirmed test", or "confirmed drug or alcohol test" means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity, and quantitative accuracy; 

(5)  "Covered employer" means a person or entity that employs a person, is covered by the Workers' Compensation Law, § 11-9-101 et seq., maintains a drug-free workplace pursuant to this chapter, and includes on the posting required by § 11-14-105 a specific statement that the policy is being implemented pursuant to the provisions of this chapter. This chapter shall have no effect on employers who do not meet this definition; 

(6)  "Director" means the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission; 

(7)  "Division" means the Workers' Health and Safety Division of the Workers' Compensation Commission; 

(8)  "Drug" means any controlled substance subject to testing pursuant to drug testing regulations adopted by the United States Department of Transportation. A covered employer shall test an individual for all such drugs in accordance with the provisions of this chapter. The director may add additional drugs by rule in accordance with § 11-14-111; 

(9)  "Drug or alcohol rehabilitation program" means a service provider that provides confidential, timely and expert identification, assessment, and resolution of employee drug or alcohol abuse; 

(10)  "Drug test" or "test" means any chemical, biological, or physical instrumental analysis administered by a laboratory authorized to do so pursuant to this chapter for the purpose of determining the presence or absence of a drug or its metabolites pursuant to regulations governing drug testing adopted by the Department of Transportation or such other recognized authority approved by rule by the director; 

(11)  "Employee" means any person who works for salary, wages, or other remuneration for a covered employer; 

(12)(A)  "Employee assistance program" means an established program capable of: 

(i)  Providing expert assessment of employee personal concerns; 

(ii)  Confidential and timely identification services with regard to employee drug or alcohol abuse; 

(iii)  Referrals of employees for appropriate diagnosis, treatment, and assistance; and 

(iv)  Follow-up services for employees who participate in the program or require monitoring after returning to work. 

(B)  If, in addition to the above activities, an employee assistance program provides diagnostic and treatment services. These services shall in all cases be provided by the program; 

(13)  "Employer" means a person or entity that employs a person and that is covered by the Workers' Compensation Law, § 11-9-101 et seq.; 

(14)  "Initial drug or alcohol test" means a procedure that qualifies as a screening test or initial test pursuant to regulations governing drug or alcohol testing adopted by the Department of Transportation or such other recognized authority approved by rule by the director; 

(15)  "Job applicant" means a person who has applied for a position with a covered employer, who has been offered employment conditioned upon successfully passing a drug or alcohol test and who may have begun work pending the results of the drug or alcohol test; 

(16)  "Medical review officer" means a licensed physician, pharmacist, pharmacologist or similarly qualified individual employed with or contracted with a covered employer who: 

(A)  Has knowledge of substance abuse disorders, laboratory testing procedures, and chain of custody collection procedures; 

(B)  Verifies positive, confirmed test results; and 

(C)  Has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information; 

(17)  "Reasonable-suspicion drug testing" means drug or alcohol testing based on a belief that an employee is using or has used drugs or alcohol in violation of the covered employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon: 

(A)  Observable phenomena while at work such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of a drug or alcohol; 

(B)  Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance; 

(C)  A report of drug or alcohol use provided by a reliable and credible source; 

(D)  Evidence that an individual has tampered with a drug or alcohol test during employment with the current covered employer; 

(E)  Information that an employee has caused, contributed to or been involved in an accident while at work; or 

(F)  Evidence that an employee has used, possessed, sold, solicited, or transferred drugs or used alcohol while working or while on the covered employer's premises or while operating the covered employer's vehicle, machinery, or equipment; 

(18)  "Safety-sensitive position" means a position involving a safety-sensitive function pursuant to regulations governing drug or alcohol testing adopted by the United States Department of Transportation. For drug-free workplaces, the director is authorized to promulgate rules expanding the scope of "safety-sensitive position" to cases where impairment may present a clear and present risk to co-workers or other persons. "Safety-sensitive position" means, with respect to any employer: 

(A)  A position in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to: 

(i)  Carry a firearm; 

(ii)  Perform life-threatening procedures; 

(iii)  Work with confidential information or documents pertaining to criminal investigations; or 

(iv)  Work with controlled substances; or 

(B)  A position in which a momentary lapse in attention could result in injury or death to another person; and 

(19)  "Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites. 

History. Acts 1999, No. 1552, § 3; 2001, No. 1757, § 10.