50-9-101. Legislative intent.

(a)  It is the intent of the general assembly to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the costs, delays and tragedies associated with work-related accidents resulting from drug or alcohol abuse by employees. It is further the intent of the general assembly that drug and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse face the risk of unemployment and the forfeiture of workers' compensation benefits.

(b)  If an employer implements a drug-free workplace program in accordance with this chapter, which includes notice, education and procedural requirements for testing for drugs and alcohol pursuant to rules developed by the division, the covered employer may require the employee to submit to a test for the presence of drugs or alcohol and, if a drug or alcohol is found to be present in the employee's system at a level prescribed by statute or by rule adopted pursuant to this chapter, the employee may be terminated and forfeits eligibility for workers' compensation medical and indemnity benefits. However, a drug-free workplace program must require the covered employer to notify all employees 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 and, 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.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167; 17.]

50-9-102. Applicability.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167; 18; 1999, ch. 520, §167; 41.]

50-9-103. Definitions.

As used in this chapter, unless the context otherwise requires:

     (1)  "Alcohol" has the same meaning in this chapter when used in the federal regulations describing the procedures used for testing of alcohol by programs operating pursuant to the authority of the United States department of transportation, currently compiled at 49 CFR part 40. It is intended that the definition shall change as the department of transportation's regulations are revised;

     (2)  "Alcohol test" means an analysis of breath, or blood, or any other analysis that determines the presence and level or absence of alcohol as authorized by the United States department of transportation in its rules and guidelines concerning alcohol testing and drug testing;

     (3)  "Chain of custody" refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling, testing and storing specimens and reporting test results;

     (4)  "Confirmation test," "confirmed test" or "confirmed drug or alcohol test" means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy;

     (5)  "Covered employer" means a person or entity that employs a person, is covered by the Workers' Compensation Law, compiled in chapter 6 of this title, maintains a drug-free workplace pursuant to this chapter and includes on the posting required by §167; 50-9-105 a specific statement that the policy is being implemented pursuant to the provisions of this chapter. This chapter shall have no effect on employers who do not meet this definition;

     (6)  "Drug" means any controlled substance subject to testing pursuant to drug testing regulations adopted by the United States department of transportation. A covered employer shall test an individual for all such drugs in accordance with the provisions of this chapter. The commissioner of labor and workforce development may add additional drugs by rule in accordance with §167; 50-9-111;

     (7)  "Drug or alcohol rehabilitation program" means a service provider that provides confidential, timely and expert identification, assessment and resolution of employee drug or alcohol abuse;

     (8)  "Drug test" or "test" means any chemical, biological or physical instrumental analysis administered by a laboratory authorized to do so pursuant to this chapter, for the purpose of determining the presence or absence of a drug or its metabolites pursuant to regulations governing drug testing adopted by the United States department of transportation or such other recognized authority approved by rule by the commissioner of labor and workforce development;

     (9)  "Employee" means any person who works for salary, wages or other remuneration for a covered employer;

     (10)  "Employee assistance program" means an established program capable of providing expert assessment of employee personal concerns; confidential and timely identification services with regard to employee drug or alcohol abuse; referrals of employees for appropriate diagnosis, treatment and assistance; and follow-up services for employees who participate in the program or require monitoring after returning to work. If, in addition to those activities, an employee assistance program provides diagnostic and treatment services, these services shall in all cases be provided by the program;

     (11)  "Employer" means a person or entity that employs a person and that is covered by the Workers' Compensation Law, compiled in chapter 6 of this title;

     (12)  "Initial drug or alcohol test" means a procedure that qualifies as a "screening test" or "initial test" pursuant to regulations governing drug or alcohol testing adopted by the United States department of transportation or such other recognized authority approved by rule by the commissioner of labor and workforce development;

     (13)  "Job applicant" means a person who has applied for a position with a covered employer and who has been offered employment conditioned upon successfully passing a drug or alcohol test, and may have begun work pending the results of the drug or alcohol test;

     (14)  "Medical review officer" or "MRO" means a licensed physician, employed with or contracted with a covered employer, who has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information;

     (15)  "Reasonable-suspicion drug testing" means drug or alcohol testing based on a belief that an employee is using or has used drugs or alcohol in violation of the covered employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon:

           (A)  Observable phenomena while at work, such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of a drug or alcohol;

           (B)  Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;

           (C)  A report of drug or alcohol use, provided by a reliable and credible source;

           (D)  Evidence that an individual has tampered with a drug or alcohol test during employment with the current covered employer;

           (E)  Information that an employee has caused, contributed to or been involved in an accident while at work; or

           (F)  Evidence that an employee has used, possessed, sold, solicited or transferred drugs or used alcohol while working or while on the covered employer's premises or while operating the covered employer's vehicle, machinery or equipment;

     (16)  "Safety-sensitive position" means a position involving a safety-sensitive function pursuant to regulations governing drug or alcohol testing adopted by the United States department of transportation. For drug-free workplaces, the commissioner is authorized, with the approval of the advisory council on workers' compensation, to promulgate rules expanding the scope of safety-sensitive position to cases where impairment may present a clear and present risk to co-workers or other persons. "Safety-sensitive position" means, with respect to any employer, a position in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to carry a firearm, perform life-threatening procedures, work with confidential information or documents pertaining to criminal investigations or work with controlled substances; or a position in which a momentary lapse in attention could result in injury or death to another person; and

     (17)  "Specimen" means tissue, fluid or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 19-24; 1998, 
ch. 1024, §167;§167; 5, 6; 1999, ch. 520, §167; 41.]

50-9-104. Testing for drugs or alcohol authorized -- Conditions for testing -- Effect of failure to comply.

(a)  A covered employer may test a job applicant for alcohol or for any drug described in §167; 50-9-103; provided, that for public employees such testing shall be limited to the extent permitted by the Tennessee and federal constitutions. A covered employer may test an employee for any drug defined in §167; 50-9-103(6), and at any time set out in §167; 50-9-106. An employee who is not in a "safety-sensitive position," as defined in §167; 50-9-103(16), may be tested for alcohol only when the test is based upon "reasonable suspicion," as defined in §167; 50-9-103(15). An employee in a safety-sensitive position may be tested for alcohol use at any occasion described in §167; 50-9-106(a)(2)-(5), inclusive. In order to qualify as having established a drug-free workplace program that affords a covered employer the ability to qualify for the discounts provided under §167; 50-6-418 and deny workers' compensation medical and indemnity benefits and shift the burden of proof under §167; 50-6-110(c), all drug or alcohol testing conducted by covered employers shall be in conformity with the standards and procedures established in this chapter and all applicable rules adopted pursuant to this chapter. If a covered employer fails to maintain a drug-free workplace program in accordance with the standards and procedures established in this section and in applicable rules, the covered employer shall not be eligible for:

     (1)  Discounts under §167; 50-6-418;

     (2)  A shift in the burden of proof pursuant to §167; 50-6-110(c); or

     (3)  Denial of workers' compensation medical and indemnity benefits pursuant to this chapter. All covered employers qualifying for and receiving discounts provided under §167; 50-6-418 must be reported annually by the insurer to the division.

(b)  The commissioner of labor and workforce development shall adopt a form pursuant to the commissioner's rulemaking authority, which form shall be used by the employer to certify compliance with the provisions of this chapter. Substantial compliance in completing and filing the form with the commissioner shall create a rebuttable presumption that the employer has established a drug-free workplace program and is entitled to the protection and benefit of this chapter. Prior to granting any premium credit to an employer pursuant to §167; 50-6-418, all insurers and self-insured pools under chapter 6, part 4 of this title, shall obtain such form from the employer. No less frequently than monthly, insurers and self-insured pools shall submit such forms to the department of labor and workforce development. Any other employer desiring to establish a drug-free workplace shall file such form with the department.

(c)  It is intended that any employer required to test its employees pursuant to the requirements of any federal statute or regulation shall be deemed to be in conformity with this section as to the employees it is required to test by those standards and procedures designated in that federal statute or regulation. All other employees of such employer shall be subject to testing as provided in this chapter in order for such employer to qualify as having a drug-free workplace program.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 25, 26; 1999, ch. 520, §167; 41.]

50-9-105. Written policy statement.

(a)  One (1) time only, prior to testing, a covered employer shall give all employees and job applicants for employment a written policy statement that contains:

     (1)  A general statement of the covered employer's policy on employee drug or alcohol use, which must identify:

           (A)  The types of drug or alcohol testing an employee or job applicant may be required to submit to, including reasonable-suspicion drug or alcohol testing or drug or alcohol testing conducted on any other basis; and

           (B)  The actions the covered employer may take against an employee or job applicant on the basis of a positive confirmed drug or alcohol test result;

     (2)  A statement advising the employee or job applicant of the existence of this section;

     (3)  A general statement concerning confidentiality;

     (4)  Procedures for employees and job applicants to confidentially report to a medical review officer the use of prescription or nonprescription medications to a medical review officer after being tested, but only if the testing process has revealed a positive result for the presence of alcohol or drug use;

     (5)  The consequences of refusing to submit to a drug or alcohol test;

     (6)  A representative sampling of names, addresses and telephone numbers of employee assistance programs and local drug or alcohol rehabilitation programs;

     (7)  A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the medical review officer within five (5) working days after receiving written notification of the test result; that if an employee's or job applicant's explanation or challenge is unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the covered employer; and that a person may contest the drug or alcohol test result pursuant to rules adopted by the department of labor and workforce development;

     (8)  A statement informing the employee or job applicant of the employee's responsibility to notify the laboratory of any administrative or civil action brought pursuant to this section;

     (9)  A list of all drug classes for which the employer may test;

     (10)  A statement regarding any applicable collective bargaining agreement or contract and any right to appeal to the applicable court;

     (11)  A statement notifying employees and job applicants of their right to consult with a medical review officer for technical information regarding prescription or nonprescription medication; and

     (12)  A statement complying with the requirements for notice under §167; 50-9-101(b).

(b)  A covered employer shall ensure that at least sixty (60) days elapse between a general one-time notice to all employees that a drug-free workplace program is being implemented and the effective date of the program. Such notice shall also indicate that on the effective date of the program that §167; 50-6-110(c) will apply to that employer.

(c)  A covered employer shall include notice of drug and alcohol testing on vacancy announcements for positions for which drug or alcohol testing is required. A notice of the covered employer's drug and alcohol testing policy must also be posted in an appropriate and conspicuous location on the covered employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the covered employer during regular business hours in the covered employer's personnel office or other suitable locations.

(d)  Subject to any applicable provisions of a collective bargaining agreement or any applicable labor law, a covered employer may rescind its coverage under this chapter by posting a written and dated notice in an appropriate and conspicuous location on its premises. The notice shall state that the policy will no longer be conducted pursuant to this chapter. The employer shall also provide sixty (60) days' written notice to the employer's workers' compensation insurer of the rescission. As to employees and job applicants, the recession shall become effective no earlier than sixty (60) days after the date of the posted notice.

(e)  The commissioner of labor and workforce development shall develop a model notice and policy for drug-free workplace programs.

(f)  Any notice required by this section shall inform minors who are tested that the minor's parents or guardians will be notified of the results of tests conducted pursuant to this chapter.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 27-33; 1998, ch. 1024, §167; 7; 1999, ch. 520, §167; 41; 2001, ch. 160, §167; 2.]

50-9-106. Required drug or alcohol tests.

(a)  To the extent permitted by law, a covered employer who establishes a drug-free workplace is required to conduct the following types of drug or alcohol tests:

     (1)  Job Applicant Drug and Alcohol Testing.  A covered employer must, after a conditional offer of employment, require job applicants to submit to a drug test and may use a refusal to submit to a drug test or a positive confirmed drug test as a basis for refusing to hire a job applicant. An employer may, but is not required to, test job applicants, after a conditional offer of employment, for alcohol. Limited testing of applicants, only if it is based on a reasonable classification basis, is permissible in accordance with division rule;

     (2)  Reasonable-Suspicion Drug and Alcohol Testing.  A covered employer must require an employee to submit to reasonable-suspicion drug or alcohol testing. A written record shall be made of the observations leading to a controlled substances reasonable suspicion test within twenty-four (24) hours of the observed behavior or before the results of the test are released, whichever is earlier. A copy of this documentation shall be given to the employee upon request, and the original documentation shall be kept confidential by the covered employer pursuant to §167; 50-9-109 and shall be retained by the covered employer for at least one (1) year;

     (3)  Routine Fitness-For-Duty Drug Testing. 

           (A)  A covered employer shall require an employee to undergo drug or alcohol testing if, as a part of the employer's written policy, the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination, or is scheduled routinely for all members of an employment classification or group; provided, that a public employer may require scheduled, periodic testing only of employees who:

           (i)  Are police or peace officers;

           (ii)  Have drug interdiction responsibilities;

           (iii)  Are authorized to carry firearms;

           (iv)  Are engaged in activities that directly affect the safety of others;

           (v)  Work in direct contact with inmates in the custody of the department of correction; or

           (vi)  Work in direct contact with minors who have been adjudicated delinquent or who are in need of supervision in the custody of the department of children's services.

           (B)  This subdivision (a)(3) does not require a drug or alcohol test if a covered employer's personnel policy on July 1, 1998, does not include drug or alcohol testing as part of a routine fitness-for-duty medical examination. The test shall be conducted in a nondiscriminatory manner. Routine fitness-for-duty drug or alcohol testing of employees does not apply to volunteer employee health screenings, employee wellness programs, programs mandated by governmental agencies, or medical surveillance procedures that involve limited examinations targeted to a particular body part or function.

     (4)  Follow-Up Drug Testing.  If the employee in the course of employment enters an employee assistance program for drug-related or alcohol-related problems, or a drug or alcohol rehabilitation program, the covered employer must require the employee to submit to a drug and alcohol test, as appropriate, as a follow-up to such program, unless the employee voluntarily entered the program. In those cases, the covered employer has the option to not require follow-up testing. If follow-up testing is required, it must be conducted at least once a year for a two-year period after completion of the program. Advance notice of a follow-up testing date must not be given to the employee to be tested; and

     (5)  Post-Accident Testing.  After an accident that results in an injury, as defined in chapter 3 of this title, and the rules promulgated thereunder, the covered employer shall require the employee to submit to a drug or alcohol test in accordance with the provisions of this chapter.

(b)  This chapter does not preclude an employer from conducting any lawful testing of employees for drugs or alcohol that is in addition to the minimum testing required under this chapter.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 34-39; 1998, ch. 1024, §167;§167; 8-10.]

50-9-107. Testing subject to department of transportation procedures -- Verification -- Chain of custody procedures -- Costs -- Discrimination on grounds of voluntary treatment prohibited.

(a)  All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States department of transportation rules for workplace drug and alcohol testing compiled at 49 CFR part 40.

(b)  A covered employer may not discharge, discipline, refuse to hire, discriminate against or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.

(c)  A covered employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by regulations of the United States department of transportation or such other recognized authority approved by rule by the commissioner of labor and workforce development governing drug testing.

(d)  A covered employer shall pay the cost of all drug and alcohol tests, initial and confirmation, that the covered employer requires of employees. An employee or job applicant shall pay the costs of any additional drug or alcohol tests not required by the covered employer.

(e)  A covered employer shall not discharge, discipline or discriminate against an employee solely upon the employee's voluntarily seeking treatment, while under the employ of the covered employer, for a drug-related or alcohol-related problem if the employee has not previously tested positive for drug or alcohol use, entered an employee assistance program for drug-related or alcohol-related problems or entered a drug or alcohol rehabilitation program. Unless otherwise provided by a collective bargaining agreement, a covered employer may select the employee assistance program or drug or alcohol rehabilitation program if the covered employer pays the cost of the employee's participation in the program. However, nothing in this chapter is intended to require any employer to permit or provide such a rehabilitation program.

(f)  If drug or alcohol testing is conducted based on reasonable suspicion, the covered employer shall promptly detail in writing the circumstances that formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the covered employer pursuant to §167; 50-9-109, and shall be retained by the covered employer for at least one (1) year.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 40-43; 1999, ch. 520, §167; 41.]

50-9-108. Drug or alcohol use not "handicap" or "disability" -- Drug or alcohol use "cause" for firing or failure to hire -- Miscellaneous provisions.

(a)  An employee or job applicant whose drug or alcohol test result is confirmed as positive in accordance with this section shall not, by virtue of the result alone, be deemed to have a "handicap" or "disability" as defined under federal, state or local handicap and disability discrimination laws.

(b)  A covered employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with this section is considered to have discharged, disciplined or refused to hire for cause.

(c)  No physician-patient relationship is created between an employee or job applicant and a covered employer or any person performing or evaluating a drug or alcohol test, solely by the establishment, implementation or administration of a drug or alcohol testing program. This section in no way relieves the person performing the test from responsibility for acts of negligence in performing the tests.

(d)  Nothing in this section shall be construed to prevent a covered employer from establishing reasonable work rules related to employee possession, use, sale or solicitation of drugs or alcohol, including convictions for offenses relating to drugs or alcohol, and taking action based upon a violation of any of those rules.

(e)  This section does not operate retroactively, and does not abrogate the right of an employer under state law to lawfully conduct drug or alcohol tests, or implement lawful employee drug-testing programs. The provisions of this chapter shall not prohibit an employer from conducting any drug or alcohol testing of employees that is otherwise permitted by law.

(f)  If an employee or job applicant refuses to submit to a drug or alcohol test, the covered employer is not barred from discharging or disciplining the employee or from refusing to hire the job applicant. However, this subsection (f) does not abrogate the rights and remedies of the employee or job applicant as otherwise provided in this section.

(g)  This section does not prohibit an employer from conducting medical screening or other tests required, permitted or not disallowed by any statute, rule or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. Such screening or testing is limited to the specific substances expressly identified in the applicable statute, rule or regulation, unless prior written consent of the employee is obtained for other tests. Such screening or testing need not be in compliance with the rules adopted by the department of labor and workforce development and department of health. If applicable, such drug or alcohol testing must be specified in a collective bargaining agreement as negotiated by the appropriate certified bargaining agent before such testing is implemented.

(h)  No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug or alcohol testing.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167; 44; 1999, ch. 520, §167; 41.]

50-9-109. Confidentiality of records -- Parental notification.

(a)  All information, interviews, reports, statements, memoranda and drug or alcohol test results, written or otherwise, received by the covered employer through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with this section or in determining compensability under this chapter.

(b)  Covered employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of such information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless such release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, relevant to a legal claim asserted by the employee or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain, at a minimum:

     (1)  The name of the person who is authorized to obtain the information;

     (2)  The purpose of the disclosure;

     (3)  The precise information to be disclosed;

     (4)  The duration of the consent; and

     (5)  The signature of the person authorizing release of the information.

(c)  Information on drug or alcohol test results for tests administered pursuant to this chapter shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this section is inadmissible as evidence in any such criminal proceeding.

(d)  This section does not prohibit a covered employer, agent of such employer or laboratory conducting a drug or alcohol test from having access to employee drug or alcohol test information or using such information when consulting with legal counsel in connection with actions brought under or related to this section, or when the information is relevant to its defense in a civil or administrative matter. Neither is this section intended to prohibit disclosure among management as is reasonably necessary for making disciplinary decisions relating to violations of drug or alcohol standards of conduct adopted by an employer.

(e)  A covered employer shall notify the parents or legal guardians of a minor of the results of any drug or alcohol testing program conducted pursuant to this chapter. Notwithstanding any other provisions of this section, an employer is authorized to disclose such results to parents and guardians and an employer shall not be liable for any disclosure permitted by this subsection (e).

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167; 45; 2001, ch. 160, §167; 1.]

50-9-110. Prerequisites for processing test specimens -- Licensure of testing laboratory.

(a)  A laboratory may not analyze initial or confirmation test specimens unless:

     (1)  The laboratory is licensed and approved by the department of health, using criteria established by the United States department of health and human services as guidelines for modeling the state drug-free testing program pursuant to this section, or the laboratory is certified by the United States department of health and human services, the College of American Pathologists or such other recognized authority approved by rule by the commissioner of labor and workforce development; and

     (2)  The laboratory complies with the procedures established by the United States department of transportation for a workplace drug test program or such other recognized authority approved by the commissioner of labor and workforce development.

(b)  Confirmation tests may only be conducted by a laboratory that meets the requirements of subdivisions (a)(1) and (2) and is certified by either the Substance Abuse and Mental Health Services Administration or the College of American Pathologists -- Forensic Urine Testing Programs.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167; 46; 1999, ch. 520, §167; 41.]

50-9-111. Rules and regulations -- Guidelines for state testing program.

(a)  The commissioner of labor and workforce development is authorized to adopt rules, using the rules and guidelines adopted by the department of health and criteria established by the United States department of health and human services and the United States department of transportation as guidelines for modeling the state drug and alcohol testing program, concerning, but not limited to:

     (1)  Standards for licensing drug and alcohol testing laboratories and suspension and revocation of such licenses;

     (2)  Body specimens and minimum specimen amounts that are appropriate for drug or alcohol testing;

     (3)  Methods of analysis and procedures to ensure reliable drug or alcohol testing results, including the use of breathalyzers and standards for initial tests and confirmation tests;

     (4)  Minimum cut-off detection levels for alcohol, each drug or metabolites of such drug for the purposes of determining a positive test result;

     (5)  Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens tested; and

     (6)  Retention, storage and transportation procedures to ensure reliable results on confirmation tests and retests.

(b)  The commissioner of labor and workforce development is authorized to adopt relevant federal rules concerning drug and alcohol testing as a minimum standard for testing procedures and protections that the commissioner may exceed. All such rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

(c)  The commissioner of labor and workforce development shall consider drug testing programs and laboratories operating as a part of the College of American Pathologists -- Forensic Urine Drug Testing Programs in issuing guidelines or promulgating rules relative to recognized authorities in drug testing.

(d)  Prior to acting on the proposed rules to implement the provisions of this chapter, the commissioner shall submit the proposed rules to the special joint committee on workers' compensation of the general assembly for its review and comment. The committee shall have forty-five (45) days to review the proposed rules and transmit any comment it may have to the commissioner.

(e)  The commissioner is authorized to set education program requirements for drug-free workplaces by rules promulgated in accordance with the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Such requirements shall not be more stringent than the federal requirements for workplaces regulated by the United States department of transportation rules.

[Acts 1996, ch. 944, §167; 50; 1997, ch. 533, §167;§167; 7, 47, 48; 1999, ch. 520, §167; 41.]

50-9-112. Temporary employment agencies exempt from drug-free workplace requirements.

A temporary employment agency shall not be required by rule, regulation or policy of the department of labor and workforce development to implement a drug-free workplace pursuant to this chapter.

[Acts 1998, ch. 1024, §167; 18; 1999, ch. 520, §167; 41.]

50-9-113. State and local government construction contracts.

(a)  Each employer with five (5) or more employees receiving pay who contracts with the state or any local government to provide construction services or who is awarded a contract to provide construction services or who provides construction services to the state or local government shall submit an affidavit stating that such employer has a drug-free workplace program that complies with this chapter, in effect at the time of such submission of a bid at least to the extent required of governmental entities. Any private employer that certifies compliance with the drug-free workplace program, only to the extent required by this section, shall not receive any reduction in workers' compensation premiums and shall not be entitled to any other benefit provided by compliance with the drug-free workplace program set forth in this chapter. Nothing in this section shall be construed to reduce or diminish the rights or privileges of any private employer who has a drug-free workplace program that fully complies with this chapter. For purposes of compliance with this section, any private employer shall obtain a certificate of compliance with the applicable portions of the Drug-free Workplace Act from the department of labor and workforce development. No local government or state governmental entity shall enter into any contract or award a contract for construction services with an employer who does not comply with the provisions of this section.

(b)  For the purposes of this section, "employer" does not include any utility or unit of local government. "Employer" includes any private company or corporation.

(c)  If it is determined that an employer subject to the provisions of this section has entered into a contract with a local government or state agency and such employer does not have a drug-free workplace pursuant to this section, such employer shall be prohibited from entering into another contract with any local government or state agency until such employer can prove compliance with the drug-free workplace program pursuant to this section. If the same employer again contracts with any local government or state agency and does not have a drug-free workplace program pursuant to this section, then such employer shall be prohibited from entering into another contract with any local government or state agency for not less than three (3) months from the date such violation was discovered and verified and shall be prohibited from entering into another contract until such employer complies with the drug-free workplace program pursuant to this section. If the same employer for a third time contracts with any local government or state agency and does not have a drug-free workplace program pursuant to this section, then such employer shall be prohibited from entering into another contract with any local government or state agency for not less than one (1) year from the date such violation was discovered and verified and shall be prohibited from entering into another contract until such employer complies with the drug-free workplace program pursuant to this section.

(d)  A written affidavit by the principal officer of a covered employer provided to a local government at the time such bid or contract is submitted stating that the employer is in compliance with this section shall absolve the local government of all further responsibility under this section and any liability arising from the employer's compliance or failure of compliance with the provisions of this section.

[Acts 2000, ch. 918, §167;§167; 1, 2.]

50-9-114. Information to be included within bid or procurement specifications for construction services -- Contesting a contract.

(a)  The state or any local government, including departments, divisions, or agencies thereof, shall include within any bid or procurement specifications for construction services the following information:

     (1)  A statement as to whether the governmental entity issuing a construction service bid or other procurement specification operates a drug-free workplace program as certified under this chapter or operates any other programs that provide for testing of employees for workplace use of drugs or alcohol;

     (2)  If operating such a program, a statement that describes the government entity's drug-free workplace or alcohol and drug testing program; and

     (3)  A statement that all bidders or proposals for construction services are required to submit an affidavit as part of their bid, that attests that such bidder operates a drug-free workplace program or other drug or alcohol testing program with requirements at least as stringent as that of the program operated by the governmental entity.

(b)  Unless suit is filed in chancery court, employers shall have seven (7) calendar days to contest a contract entered into by employers subject to the provisions of this section with a local government or state government. Employers that do not contest such contracts within seven (7) calendar days by filing suit in chancery court shall waive their rights to challenge such contracts for violating the provisions of this section. Such contracts shall be contested in chancery court in the county where the contract was entered. The trial of the alleged violation of the provisions of this section shall be expedited by giving it priority over all cases on the trial docket, except workers' compensation cases.

[Acts 2002, ch. 693, §167; 1.]