Drug testing - Tennessee

Workers’ compensation

Benefits may be denied to an employee whose injury or death is due to intoxication or the use of illegal drugs. Refusal to test presumes that the proximate cause of injury was drug or alcohol use and may result in denial of benefits.

Employers who implement a Drug-free Workplace Program under the rules adopted by the Bureau of Workers’ Compensation are eligible to receive a five percent discount on workers’ compensation insurance.

Drug-free Workplace Program

Under the voluntary Tennessee Drug-Free Workplace Program (Title 50, Chapter 9 of the Tennessee Code), an employer receives:

• A premium discount on workers’ compensation insurance.
• A shift in the burden of proof for workers’ compensation claims that involve a positive alcohol or drug test. Workers’ compensation benefits could be denied to an injured employee who fails a post-accident drug or alcohol test, unless the employee overcomes the presumption that drugs or alcohol were the cause of the injury.
• A presumption that an employee who is fired because of a positive drug or alcohol test has been discharged for cause. This could disqualify an employee from receiving unemployment insurance benefits.

Employers participating in the program must meet the criteria established by the Tennessee Department of Labor and Workforce Development for the Drug-Free Workplace Program. This includes:

Drug testing

Employers must require job applicants to submit to a drug test and may test for alcohol after a conditional offer of employment has been made.

Employees must be required to submit to reasonable-suspicion drug tests, and employers must record observations leading to the test within a time frame specified in the law. An employer must conduct fitness for duty testing and follow-up drug testing if certain conditions are met.

Post-accident tests must be conducted after an accident resulting in injury to another individual or property damage over $5,000. If an injured employee refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for workers’ compensation medical and indemnity benefits.

Employers may lawfully test employees for drugs or alcohol in addition to the minimum testing required under the law. They must pay for the cost of required drug and alcohol tests.

Testing procedures

Testing must conform to the law’s requirements. Testing must be done by a licensed laboratory, certain categories of drugs must be included in the test, and specified cut-off levels must be used.

Procedural guidelines, chain-of-custody procedures, and cut-off levels are determined by the state Department of Health. For drug or alcohol use to be presumed to be the cause of the injury, specific concentration levels must be met.

Notification

All employees must be notified that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in the employee’s body.

Employers must provide employees and applicants with a written policy statement containing information on the types of drug or alcohol testing an employee or job applicant may be required to submit to, and the actions that may be taken on the basis of a confirmed, positive test.

The policy must also include information on confidentiality, consequences for refusing a test, assistance program contact information, and other items specified in the law.

Minors must be informed that the minor’s parents or guardians will be notified of test results.

Posting

Employers must post a notice of their drug and alcohol policy, and copies of the policy must be made available for inspection by employees or job applicants.

Valid prescriptions

Only prescriptions issued within six months before the confirmed positive test can be considered by the medical review officer for purposes of determining whether the positive test result was caused by a valid prescription.

Training

Within 60 days of an employer implementing a Drug-Free Workplace Program, employees must be trained on the employer’s policies, testing procedures, consequences for violating the policies, the drugs for which testing will be performed, and employee assistance programs available.

Education may include additional information on addiction and the avoidance of substance abuse.

Supervisors must receive an additional two hours of training.

Drug-Free Workplace Program: Contractors

Tennessee’s Drug-Free Workplace Program law provides that employers with five or more paid employees who contract with state or local government entities to provide construction services must submit an affidavit stating that the employer has a drug-free workplace program that complies with Title 50, Chapter 9, at least to the extent required of governmental entities.

Any private employer that certifies compliance only to the extent required by the law will not receive any reduction in workers’ compensation premiums and will not be entitled to other benefits of the Drug-Free Workplace Program outlined in Title 50, Chapter 9. Employers must obtain a certificate of compliance from the Department of Labor and Workforce Development.

If an employer with a local or state contract does not have a drug-free workplace in compliance with the program, the employer will be prohibited from entering into another contract with a state or local agency until the employer can prove compliance.

Unemployment compensation

Tennessee’s unemployment compensation law allows an employee discharged for a positive drug test result for a test administered in compliance with the Tennessee Drug-Free Workplace Program to be deemed discharged for misconduct and ineligible for unemployment compensation benefits. Refusal to take a test is deemed misconduct and results in forfeiture of benefits.