Current Status Bill Number:3778 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950309 Primary Sponsor:Neilson All Sponsors:Neilson, Inabinett, Robinson, Littlejohn, Richardson, Stuart, Vaughn, Rice, Allison and Stille Drafted Document Number:PFM\7060BDW.95 Residing Body:House Current Committee:Labor, Commerce and Industry Committee 26 HLCI Subject:Drug Testing for State Employees
Body Date Action Description Com Leg Involved
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House 19950309 Introduced, read first time, 26 HLCI
referred to Committee
View additional legislative information at the LPITS web site.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 14 TO TITLE 8 SO AS TO ESTABLISH UNIFORM STANDARDS FOR PRE-EMPLOYMENT AND EMPLOYMENT DRUG TESTING OF STATE EMPLOYEES, REQUIRE THIS DRUG TESTING UNDER CERTAIN CONDITIONS, AND PROVIDE PROCEDURES FOR ITS CONFIDENTIALITY, RELIABILITY, AND FAIRNESS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that:
(1) A healthy and productive state work force, safe working conditions free from the effects of drugs, and maintenance of the quality of products made and services rendered in this State are important to the State, its employees, and the general public.
(2) Certain drug testing procedures are necessary to protect persons participating in workplace drug testing programs.
(3) In balancing the interests of the State, its employees, and the welfare of the general public, the General Assembly concludes that fair and accurate testing for drugs in the state public sector workplace is in the best interest of all.
SECTION 2. Title 8 of the 1976 Code is amended by adding:
Section 8-14-10. As used in this chapter, the following definitions apply:
(1) `Confirmation test' means a drug test on a specimen to substantiate the results of a prior drug test on the specimen. The confirmation test must use an alternate method of equal or greater sensitivity than that used in the previous drug test.
(2) `Drug' means an illegal drug, a prescription or nonprescription medication, or ethyl alcohol.
(3) `Drug test' means a chemical test administered to determine the presence or absence of a drug or metabolites in a person's bodily fluids.
(4) `Employee' means a person who, for remuneration or pursuant to a contract for hire, supplies a service to this State as its employer.
(5) `Employee assistance program' means a program provided by an employer offering assessment, short-term counseling, and referral services to employees, including drug, alcohol, and mental health programs.
(6) `Employer' means this State and its agencies or departments.
(7) `Illegal drug' means a substance, other than alcohol, having psychological or physiological effects, or both, on a human being and that is not a prescription or nonprescription medication, including controlled dangerous substances and controlled substance analogies or volatile substances which produce the psychological or physiological effects, or both, of a controlled dangerous substance through deliberate inhalation.
(8) `Initial test' means an initial drug test to determine the presence or absence of drugs or their metabolites in specimens.
(9) `Neutral selection basis' means a mechanism for selecting employees for drug tests that results in an equal probability that an employee from a group of employees subject to the selection mechanism will be selected and does not give an employer discretion to waive the selection of an employee selected under the mechanism.
(10) `Prescription or nonprescription medication' means a drug prescribed for use by a licensed physician, dentist, or other medical practitioner licensed to issue prescriptions or a drug authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments, or injuries.
(11) `Reasonable suspicion drug testing' means drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience and may be based upon, among other things:
(a) observable phenomena, such as direct observation of drug use or the physical symptoms or manifestations of being under the influence of a drug;
(b) abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance;
(c) a report of drug use provided by reliable and credible sources and which has been independently corroborated;
(d) evidence that an individual has tampered with a drug test during his employ with the current employer;
(e) information that an employee has caused or contributed to an accident while at work;
(f) evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs while working or while on the employer's premises or operating the employer's vehicle, machinery, or equipment.
(12) `Specimen' means a tissue or product of the human body chemically capable of revealing the presence of drugs in the human body.
Section 8-14-20. (A) An employee who is required by an employer to submit to a drug test must be provided, at least thirty days before the implementation of a drug testing program, a written policy statement from the employer which contains:
(1) a general statement of the employer's policy on employee drug use which must identify the grounds on which an employee is required to submit to a drug test and the actions the employer may take against an employee on the basis of a positive confirmed drug test result, or other violation of the employer's drug use policy;
(2) a statement advising the employee of the existence of this chapter;
(3) a general statement concerning confidentiality;
(4) procedures for how employees can confidentially report the use of prescription or nonprescription medications before being tested;
(5) circumstances under which drug testing may occur and a description of which positions are subject to testing on a reasonable suspicion, neutral selection, or other basis;
(6) the consequences of refusing to submit to a drug test;
(7) information on opportunities for assessment and rehabilitation if an employee has a positive confirmed test result and the employer determines that discipline or discharge is not necessary or appropriate;
(8) a statement that an employee who receives a positive confirmed drug test result may contest the accuracy of that result or explain it;
(9) a list of all drugs for which the employer might test. Each drug must be described by its brand name or common name, as applicable, as well as its chemical name.
(10) a statement regarding applicable terms of the employment relationship.
(B) The employer shall post the notice in an appropriate and conspicuous location on the employer's premises and copies of the policy must be available for inspection during regular business hours by employees in the employer's personnel office or other suitable locations.
(C) The Budget and Control Board shall develop standard language for those sections of drug testing notices described in items (2), (3), and (4) of subsection (A).
(D) An employer who conducts job applicant drug testing shall notify the applicant, in writing, upon application and before the collection of the specimen for the drug test, that the applicant may be tested for the presence of drugs or their metabolites.
(E) An employee or job applicant required to submit to a drug test may be requested by an employer to sign a statement indicating that he has read and understands the employer's drug testing policy and notice. An employee's or job applicant's refusal to sign the statement does not invalidate the results of a drug test or bar the employer from administering the drug test or taking action consistent with the terms of the employer's drug testing policy, or refusing to hire the job applicant.
Section 8-14-30. (A) All drug testing conducted by employers must be in conformity with the standards established in this section, other applicable provisions of this chapter, and all applicable regulations promulgated pursuant to this chapter.
(B) An employer shall conduct the types of drug tests enumerated in subsections (C), (D), and (E) under the terms and conditions specified by this chapter upon the Budget and Control Board determining that the procedures for the testing authorized by this chapter are in place and that this testing can be administered to all employees of the State on a statewide basis. Upon making these determinations, the board shall order state agencies and departments to implement the testing procedures authorized by this chapter.
(C) Job applicant testing is authorized in the manner provided in this chapter. Employers can require job applicants to submit to a drug test as a condition of the employment application and may use a refusal to submit to a test or positive confirmed test result as a basis for refusal to hire.
(D) Reasonable suspicion drug testing is authorized in the manner provided in this chapter. An employer may require all employees to submit to a reasonable suspicion drug testing where the employer has a reasonable suspicion the employee is using illegal drugs. It is permissible to infer that the employer had reasonable suspicion to test for drugs if the specimen provided by the employee tested positive for drugs in a confirmatory drug test.
(E) Neutral selection, routine, and follow-up testing is authorized in the manner provided in this chapter. An employer may require an employee to submit to a drug test on a neutral selection basis when the nature of the employee's position would create a health or safety risk to the employee, fellow employees, or the public, or a security risk in the workplace, if the employee is affected by the use of a drug.
(F) An employer may require an employee to submit to a neutral selection or routine drug test if the test is conducted as part of a routinely scheduled employee fitness for duty medical examination that is part of the employer's established policy or which is scheduled routinely for all members of an employment classification or group.
(G) An employer may require an employee to submit to a neutral selection or routine drug test if the employee in the course of his employment enters a drug abuse rehabilitation program, and as a follow-up to rehabilitation, or if previous drug testing of the employee within a twelve month period resulted in a positive confirmed test result.
(H) If an employee is participating in drug abuse rehabilitation, drug testing may be conducted by the rehabilitation provider as considered appropriate by the provider.
Section 8-14-40. All specimen collection and testing for drugs under this chapter must be performed in accordance with the following procedures:
(1) The collection of specimens must be performed under reasonable and sanitary conditions. Individual dignity must be preserved to the extent practicable.
(2) Specimens must be collected in a manner reasonably calculated to prevent substitution of specimens and interference with the collection or testing of specimens.
(3) Specimen collection must be documented and the documentation procedures include:
(a) labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results;
(b) an opportunity for the employee or applicant to provide information he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information. The provision of this information does not preclude the administration of the drug test but must be taken into account in interpreting positive confirmed results.
(4) Specimen collection, storage, and transportation to the testing site must be performed in a manner which reasonably precludes specimen contamination or adulteration.
(5) Specimen testing for drugs must conform to scientifically accepted analytical methods and procedures.
(6) Each confirmation test conducted under this chapter, not including the taking or collecting of a specimen to be tested, must be conducted by a laboratory approved in the manner provided by this chapter.
(7) A specimen for a drug test must be taken or collected by any of the following persons:
(a) a physician licensed pursuant to Chapter 47 of Title 40 or a nurse licensed pursuant to Chapter 33 of Title 40;
(b) a qualified person employed by an approved laboratory;
(c) a person considered qualified by the Budget and Control Board.
(8) The Budget and Control Board, through appropriate state agencies, shall cause to be established a program to train and certify persons to collect specimens and conduct on-site drug tests in the workplace. Employers may designate employees for this training and certification or may utilize a person trained and certified.
(9) A person who collects or takes a specimen for a drug test conducted pursuant to this chapter shall collect an amount sufficient for two drug tests as defined by the Budget and Control Board.
(10) Drug testing conducted or requested by an employer must occur during or immediately after the regular work period of current employees, and is considered to be performed during work time for purposes of determining compensation and benefits for current employees.
(11) A specimen that produces a positive confirmed result must be preserved in a frozen state by the approved laboratory that conducts the confirmation test for ninety days from the time the result of the positive confirmed test is mailed or otherwise delivered to the employer. During this period, the employee who has provided the specimen must be permitted by the employer to have a portion of the specimen retested, at the employee's expense, at an approved laboratory chosen by the employee. The laboratory that has performed the test for the employer is responsible for the transfer of the portion of the specimen to be retested, and for the integrity of the chain-of-custody during the transfer.
(12) Within five working days after receipt of a positive confirmed test result report from the testing laboratory, an employer shall inform, in writing, an employee of the positive test result and inform the employee in writing of the consequences of the report and the options available to him.
(13) An employee may request and receive from the employer a copy of the test result report.
(14) Within ten working days after receiving notice of a positive confirmed test result, the employee may submit information to an employer explaining the test results, and why the results do not constitute a violation of the employer's policy. If an employee's explanation of the positive test result is not satisfactory to the employer, a written explanation submitted by the employer as to why the employee's explanation is unsatisfactory, along with the report of positive results, must be made part of the employee's medical and personnel records.
(15) An employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result that has not been verified by a confirmatory test.
(16) In addition to the limitation under item (15), an employer may not discharge, discipline, or discriminate against an employee for whom a positive confirmed drug test result was the first time the employee had tested positive for a drug while in the employ of the employer unless all of the following conditions have been met:
(a) The employer first has given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, drug abuse assessment and, if necessary, drug abuse rehabilitation.
(b) The employee has refused to participate in the assessment or rehabilitation program or has failed to complete successfully the program, as evidenced by withdrawal from the program before its completion, a report from the program indicating unsatisfactory compliance, or a positive test result on a confirmatory test after completion of the program.
(c) The employee's work performance has been inadequate, the employee has caused or contributed to an accident, or the employee has taken or omitted to take other action which ordinarily would result in the discharge or discipline of the employee.
(17) An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of medical history information revealed to the employer pursuant to this chapter unless the employee had an affirmative obligation to provide this information before, upon, or after hire.
(18) An employer who performs on-site drug tests or specimen collection shall establish chain-of-custody procedures to ensure proper recordkeeping, handling, labeling, and identification of all specimens to be tested.
(19) The employer shall pay the costs of all drug tests to which he requires or requests an employee or job applicant to submit. The employee or job applicant shall pay the costs of additional drug tests requested by the employee or job applicant.
Section 8-14-50.(A) Only approved laboratories may conduct confirmation drug tests.
(B) All confirmation tests must use an alternate method of equal or greater sensitivity than that used on the initial drug test.
(C) If an initial drug test is negative, there must be no confirmation drug test.
Section 8-14-60. (A) An employee or job applicant whose drug test result is confirmed as positive in accordance with this chapter, by virtue of the result alone, must not be defined as a person with a `handicap'.
(B) An employer who discharges or disciplines an employee on the basis of a positive confirmed drug test in accordance with this chapter is considered to have discharged or disciplined the employee for cause.
(C) An employee discharged on the basis of a confirmed positive drug test in accordance with this chapter is considered to have been discharged for wilful misconduct.
(D) A physician-patient relationship is not created between an employee or job applicant and an employer or any person performing or evaluating the drug test solely by the establishment or implementation of a drug testing program.
(E) This chapter does not prevent an employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug-related offenses, and taking action based upon a violation of the rules.
(F) This chapter is not retroactive and does not abrogate the right of an employer to conduct drug tests before the effective date of this chapter. A drug test conducted by an employer before the effective date of this chapter is not subject to this chapter.
(G) If an employee refuses to submit to drug testing administered in accordance with this chapter, the employer is not barred from discharging, disciplining, or referring the employee to assessment or drug abuse rehabilitation, or both.
(H) An employer, in addition to appropriate personnel actions, may refer an employee found to have violated the employer's policy on drug use to an employee assistance program for assessment, counseling, and referral for treatment or rehabilitation as appropriate.
(I) This chapter does not prohibit an employer from conducting medical screening or other tests required by law to monitor exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. These screenings or tests are limited to the specific substances expressly identified in the applicable provision of law, unless prior written consent of the employee is obtained for other tests.
(J) An employer temporarily may suspend or transfer an employee to another position after obtaining the results of a positive on-site initial test or positive confirmed test if the employee's position is one which would create a health or safety risk to the employee, fellow employees, or the public, if the employee is affected by the use of a drug.
Section 8-14-70. (A) All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through its drug testing program are confidential communications and must not be used or received in evidence, obtained in discovery, or disclosed in a public or private proceedings, except in accordance with this chapter.
(B) Information obtained by an employer pursuant to this chapter is the property of the employer.
(C) An employer may not release to a person other than the employee or job applicant, or medical, supervisory, or other personnel of the employer designated by the employer on a need-to-know basis, information related to drug test results unless:
(1) The employee or job applicant, in writing, expressly has granted permission for the employer to release the information.
(2) It is necessary to introduce a positive confirmed test result into an administrative hearing or a judicial proceeding if the information is relevant to the hearing or proceeding or the information must be disclosed to a federal or state agency or other unit of the state or federal government as required by law or contract or disclosed to a drug abuse rehabilitation program for evaluation or treatment of an employee.
(3) There is a risk to public health or safety that can be minimized or prevented by the release of the information. Unless the risk is immediate, a court order permitting the release must be obtained before the release of the information.
(D) The confidentiality provisions of this section do not apply to other parts of an employee's or job applicant's personnel or medical files.
(E) If an employee refuses to sign a written consent form for release of information to persons as permitted in this chapter, the employer is not barred from discharging or disciplining the employee.
Section 8-14-80. (A) No laboratory may conduct confirmation drug tests unless the laboratory:
(1) is approved for this purpose by the Budget and Control Board;
(2) has written testing procedures and written procedures to ensure a chain-of-custody;
(3) demonstrates satisfactory performance in the proficiency testing program of the National Institute on Drug Abuse, the College of American Pathology, or the American Association for Clinical Chemistry, or the equivalent;
(4) follows proper quality control procedures, including, but not limited to:
(a) the use of internal quality controls including the use of samples of known concentrations which are used to check the performance and calibration of testing equipment, and periodic use of blind samples for overall accuracy;
(b) an internal review and certification process for test results, conducted by a person qualified to perform that function in the testing laboratory;
(c) security measures implemented by the testing laboratory to preclude adulteration of specimens and test results;
(d) other necessary and proper actions taken to ensure reliable and accurate test results.
Section 8-14-90. (A) A laboratory shall disclose to the employer a written test result report within five working days after the test.
(B) Laboratory reports of a test result must state at a minimum:
(1) the name and address of the laboratory that performed the test and the positive identification of the person tested;
(2) positive confirmed drug test results on a specimen which tested positive on an initial test or negative drug test results on a specimen. Reports may not make reference to initial or confirmatory tests when reporting positive or negative results;
(3) a list of the drugs tested for;
(4) the type of tests conducted for initial and confirmation tests and the cut-off levels of the tests.
(C) Laboratory reports of a drug test may not disclose the presence or absence of a physical or mental condition or of a drug other than the specific drug and its metabolites that an employer requests to be identified.
Section 8-14-100. The Budget and Control Board shall promulgate regulations concerning:
(1) standards for approving drug testing laboratories;
(2) body specimens appropriate for drug testing;
(3) methods of analysis and procedures to ensure reliable drug testing results, including standards for initial tests and confirmatory tests;
(4) guidelines on how to establish cut-off detection levels for drugs or their metabolites for the purposes of determining a positive test result;
(5) chain-of-custody procedures to ensure proper identification, labeling, and handling of specimens being tested;
(6) retention and storage procedures to ensure reliable results on confirmation tests and retests.
Section 8-14-110. (A) A person alleging a violation of this chapter may bring an action for injunctive relief or damages, or both.
(B) Damages are limited to the recovery of compensatory damages directly resulting from injury or loss caused by each violation of this chapter and do not include noneconomic losses.
(C) A person may bring an action under this chapter only after first exhausting all applicable grievance procedures or administrative remedies.
(D) If a violation of this chapter is found and damages are awarded, reasonable attorney fees may be awarded to the person if the court finds an employer knowingly or recklessly has violated this chapter.
Section 8-14-120. (A) Upon an alleged violation of this chapter, a person shall institute an action in the circuit court within six months of the alleged violation or the exhaustion of administrative remedies available to the person, or he is barred from obtaining relief. Relief may include and is limited to:
(1) an injunction to restrain the continued violation of this chapter;
(2) the reinstatement of the person to the same position held before the unlawful drug testing, disciplinary action, or discharge or to an equivalent position;
(3) the reinstatement of full employee benefits and seniority rights;
(4) compensation for lost wages, benefits, and other remuneration to which the person would have been entitled but for a violation of this chapter;
(5) payment by the employer of reasonable costs.
(B) An employer who complies with this chapter is immune from all civil actions arising from drug testing programs or procedures performed in compliance with this chapter.
(C) Pursuant to a claim alleging a violation of this chapter, including a claim where it is alleged an employer's action with respect to a person was based on an incorrect test result, it is permissible to infer that the test result was valid if the employer complied with this chapter.
(D) No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of a person against an employer who has established a program of drug testing in accordance with this chapter, unless:
(1) Information regarded as confidential is released not in accordance with an information release form signed by the person or otherwise not in accordance with this chapter.
(2) The information disclosed was based on an incorrect test result.
(3) The incorrect test result was disclosed with malice.
(4) All other elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law are satisfied.
(E) No cause of action arises in favor of a person based upon the failure of an employer to establish a program or policy for drug testing."
SECTION 3. This act takes effect July 1, 1995.