(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.