The Tennessee Department of Labor recently published revised regulations relating to the Tennessee Drug-Free Workplace Act. While employer participation in this program is voluntary, employers who choose to participate in the program must meet certain criteria relating to drug testing, training and employee notice of the drug testing policy.
The new regulations have significantly changed some of these criteria in the following areas:
- Types of drugs employers are required to test for. This list has been revised to mirror the types of drugs the federal Department of Labor currently tests for (marijuana, cocaine, amphetamines, opioids, PCP, and alcohol.
- Impact of positive test for other substances. While employers are still permitted to test for other substances, a positive test result no longer creates a presumption that workers’ compensation and/or unemployment benefits should be denied.
- Lower blood alcohol content threshold for all employees. The threshold for a positive blood alcohol test for employees in on-safety-sensitive positions has been lowered to 0.04 (from 0.08). This is now the same as the blood alcohol level for employees in safety-sensitive positions.
- Newly defined “reasonable suspicion”. Employers are required to conduct reasonable suspicion drug testing, but the definition of reasonable suspicion has been expanded to include “an accident which results in an injury to another individual or in property damage exceeding $5,000.”
- Shorter time frame for documentation of reasonable suspicion. Employers always had a duty to document their basis for reasonable suspicion drug testing, but now they must document the basis for reasonable suspicion within 24 hours and provide that basis to the employee within that time frame.
- New employee training requirements. Employers have always had a requirement to train employees regarding the Drug Free Workplace Program. Now employers only have to provide that training to employees one time during the employment relationship (as opposed to annually). The training must be provided within 60 days of the employer’s adoption of a Drug-Free Workplace Program or within 60 days of the employee’s hire date. In addition, employers are required to provide supervisors 2 hours of training related to its Drug Free Workplace Program, but that training only need be provided once. 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.
It is recommended that employers who currently participate in the Tennessee Drug Free Workplace Program (or think they want to) review the new regulations.