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.