TN – A drug-free workplace program is good

October 10th, 2018 by William S. Rutchow at Ogletree Deakins


This blog was written by William S. Rutchow at Ogletree Deakins, author of our Model Policies and Forms for Tennessee Employers. Ogletree also authors our Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Insights blog on their website.

 

Tennessee Department of Labor Revises Drug-Free Workplace Program Requirements

William S. Rutchow

Twenty years ago, the Tennessee Department of Labor (TNDOL) adopted regulations implementing the Tennessee Drug-Free Workplace Act and establishing the Tennessee Drug-Free Workplace Program. This year, the TNDOL substantially revised these regulations. The revised regulations became effective on May 6, 2018.

Employer participation in the Drug-Free Workplace Program is voluntary. The benefits for employers that participate in the program include:

  • A 5 percent premium credit on their workers' compensation insurance policies.
  • A shift in the burden of proof in workers’ compensation claims involving a positive alcohol or drug test. If an employee is injured at work and later fails a post-accident drug/alcohol test, it is presumed that drugs or alcohol were the proximate cause of the injury. Workers’ compensation benefits can be denied unless the injured employee overcomes that presumption.
  • A presumption that any discharge of an employee, or the refusal to hire a job applicant, who is found to be in violation of the employer’s drug-free workplace program is a discharge “for cause.” This presumption should, in most cases, disqualify an employee from receiving unemployment benefits.

In order to take advantage of these benefits, employers that choose to participate in the program must meet certain criteria the TNDOL has established with regard to drug testing, training, and notification to employees.

The following is a summary of several of the more significant changes the TNDOL has made to its regulations. 

Types of Drugs

The types of drugs an employer is required to test for has changed. The previous regulations included a list of six categories of drugs as well as alcohol. The revised regulations limit required testing to drugs listed on the TNDOL’s Bureau of Workers’ Compensation website. This list is drawn from the U.S. Department of Transportation's (DOT) list of the types of drugs the DOT currently tests for: marijuana metabolites, cocaine metabolites, amphetamines, opioids, and phencyclidine (PCP), as well as alcohol. One class of drugs no longer on the required testing list is MDMA (ecstasy). 

Other Substances

Employers are still permitted to test for other substances, but such testing does not create the presumptions allowing for the denial of Workers’ Compensation benefits and unemployment benefits. 

Blood Alcohol Content Threshold

Under the prior regulations, the threshold for blood alcohol content was 0.08 percent for non-safety-sensitive positions and 0.04 percent for safety-sensitive positions. The revised regulations now apply the 0.04 percent threshold for a positive alcohol test to all employees.

Reasonable Suspicion

Employers are required to conduct reasonable suspicion testing. The definition of “reasonable suspicion” has been expanded to include “[a]n accident which results in an injury to another individual or in property damage exceeding…$5,000.00.”

Duty to Document

Before these amendments, employers were required to document the basis for their reasonable suspicion within seven days and provide a copy of the documentation to the employee “if requested.” The regulations now require an employer to document reasonable suspicion within 24 hours and to provide this documentation to the employee.

Standard of Proof

When an employee has a positive test (or refuses to test) post-accident, there is a presumption that the presence of drugs or alcohol was the proximate cause of the accident unless the employee can provide clear and convincing evidence to the contrary. Previously, an employee’s burden of proof was by a preponderance of the evidence. This increase in the standard of proof (first adopted in 2011, but only now recognized in the regulations) makes it even more difficult for employees impaired by alcohol or drugs to qualify for Workers’ Compensation benefits.

Training

The amount of required employee training has been reduced, although certain topics are now required to be covered in that employee training. Employers were previously required to train employees for one hour at least once per year.  Now employers are required to train employees at least one time (ever), but that training must take place within 60 days of the employer’s adoption of a Drug-Free Workplace Program or within 60 days of the employee’s hire date.

  • The training must include information on the employer’s Drug-Free Workplace Program policies, testing procedures, consequences for violation the policies, the specific drugs to be tested for, and any substance abuse or employee assistance programs available to employees. The training can also include substance abuse awareness issues.
  • Employers are still required to provide two hours of training to supervisors, but now that training can be given one time only. 

Appeals

The regulations have added a new provision for employees to appeal a positive drug or alcohol test to the Bureau of Workers’ Compensation. 

Key Takeaways

Employers with existing Drug-Free Workplace Programs may want to review their programs and, if necessary, consult with legal counsel to ensure that their programs comply with the new regulations. For employers that do not participate in the Tennessee Drug-Free Workplace Program, these recent amendments may signal an opportunity to reconsider such participation.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.



Related posts

The #1 office perk is . . . ?

Natural light Natty Light Spam Lite Lite-Brite Blinded by the Light Any answer except #1, Natural light, may not be correct. Have a good Friday. ..read more

List 10 Up: Top tips for starting a workplace incident interview

PODCAST Workplace investigations can either stall out without any clear answer, or instead succeed and lead to a conclusion, depending on the effectiveness of the interviews. However, many people conducting interviews skip simple steps at the very outset that maximize their effectiveness.  ... ..read more

Is that red light flashing?

This blog was written by Zoe Argento and Julia Arnold at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Insight News & Analysis (which is excellent) on their website.   Hit the Pause Button: The Implications of... ..read more

Round up stew: sick leave, harassment, non-compete, etc.

This blog was written by Shennan Harris at Squire Patton Boggs. Shennan is a co-author of our Wages and Hours – An Employer's Guide. You can find the original blog post and their Employment Law Worldview on their website.   State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Othe... ..read more

Identifying trade secrets does not mean figuring out how to barter better

This blog was written by Emma Schuering and Eric Packel at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Identifying trad... ..read more

Milk Stork delivers for working mom's and their baby

If you are in the practice of sending employees on overnight business trips AND you employ new mothers AND you believe in treating your employees right we’ve got just the bird for you.  Milk Stork is the first breast milk shipping company to support nursing mothers who are on the road and need... ..read more

Help hiring holiday help here

This blog was written by John Monroe and Kristina Griffin at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.   Welcome to the Holiday Season!... ..read more

Public disclosure of confidential information is easier than you think

This blog was written by Tina Syring at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website.   Do You Know What ... ..read more

Workplace shootings – 20 can-dos to prevent them

This blog was written by Debra Friedman, contributor to our New York Human Resources Manual, at Cozen O'Connor, which also authors our Pennsylvania Human Resources Manual and Minnesota Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website... ..read more

List 10 up: Positive employee relations training: reap the benefits of engagement

PODCAST Spend 14 minutes with Michael Kessel, Russ McEwan and Alan Model from our author Littler as they discuss the benefits of employee engagement that can come from positive employee relations training in the podcast Spotlight on Positive Employee Relations Training: How Employers Can Reap ... ..read more

Prepare for saying "No" – you need to decide how to refuse service

This blog was written by Seth Ford and Matt Anderson at Troutman Sanders, author of the Georgia Human Resources Manual. You can find the original article and their HR Law Matters blog on their website.   A Plan for Saying No: How to Refuse Service Refusing to serve a patron is a hot topic... ..read more

All aboard the Love Train for long-term onboarding!

onboarding änˈbôrdiNG noun  getting a new employee up to speed as fast as possible so you can get back to work  the first step in learning how to surf; literally just staying on the surfboard by any means, often accompanied by the phrase "Hang one"  a 90-day process of integrating... ..read more


HR Webinars
Not Suitable for Work?
November 14th, 2018 at 11:00am CST by Robin Shea at Constangy

Effective documentation and employment audits
October 23rd, 2018 at 11:00am CDT by Olivia Hochschwender at Kastner Westman & Wilkins


HR Articles
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
PS: PTSD IRL*
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
Introverts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Holidays
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Breaktimes
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files