By Jeff Jones
Special to the UCBJ
Effective May 6, 2018, the Tennessee Department of Labor amended Regulations under the Drug-Free Workplace Act (“the Act”). Below are some highlights of the recent changes, but first, employers may ask why be a “drug free workplace” under the Act? Covered employers receive several benefits, such as
(1) premium discounts on workers’ compensation insurance;
(2) a shift in the burden of proof when an employee’s injury or death is shown to have been caused by intoxication or illegal drug use; and
(3) employee discharge or discipline for a policy violation is deemed with “cause,” thus offering employer protections in such decisions.
The Act requires a written policy, with requisite notices, posting, training and procedures as detailed in the Act and the Regulations. The written policy must contain several specific provisions, such as the types of drug and/or alcohol testing required and must address testing of applicants, employees in safety-sensitive positions, following a workplace accident that results in injury, part of a routine fitness-for-duty medical exam (where required), as a follow-up to a required rehabilitation program, and upon reasonable suspicion.
The definition of “reasonable suspicion,” has recently been amended under the new Regulations to include “an accident which results in injury or property damages exceeding $5,000 or minimum amount set by US DOT guidelines.” Regulations now also require the observed conduct supporting “reasonable suspicion” testing to be documented within 24 hours and documentation “shall be” given to the employee (no longer “if requested”). According to the amended Regulations, the alcohol level for testing has been lowered to .04 for all positions; there is no longer the .08 for “non-safety sensitive” positions.
The Drug-Free Workplace Act provides a rebuttable presumption in favor of the employer where an injured employee tests positive for illegal drugs or alcohol (at the prohibited level) or when an injured worker refuses to submit to a post-accident drug or alcohol test. Under this provision, it is presumed that the illegal drug or alcohol “was the proximate cause of the injury” and bluntly stated, this helps employers deny benefits to an injured employee based on the presence of illegal drugs or alcohol.
Anyone who thinks this shift in the burden of proof benefit is “no big deal” may want to review the case of Crowder v. Morningstar, 2006 Tenn. LEXIS 809, wherein the Supreme Court of Tennessee affirmed the award of workers’ compensation benefits to an injured employee despite the presence of marijuana in his system. The Court noted “The appellate court’s independent examination of the record revealed no evidence that the employer had implemented a drugfree workplace” (emphasis added).
Thus, the employer was not entitled to the shift in the burden of proof and the appellate court could not say that the employee’s use of illegal drugs was a proximate cause of the accidental injury.
In contrast to the Crowder case is the 2016 case of Austin v. Roach Sawmill & Lumber Co., 2016 Tenn. LEXIS 747, where the Supreme Court affirmed the trial court’s denial of workers’ compensation benefits based on the drug screen which revealed the employee had taken non-prescribed medications shortly before the accident; in Austin, the employer had evidently adopted a policy pursuant to the Drug-Free Workplace and was entitled to the rebuttable presumption.
Finally, the drugs for which a covered employer shall test are now those listed at 49 CFR part 40 (DOT) (rather than the 7-panel listed in the previous Tennessee regulations): currently marijuana, cocaine, amphetamines, phencyclidine (PCP), and opioids.
Any testing under the Act by public employers is still “limited to the extent permitted by the Tennessee and Federal Constitutions,” so public employers should consult with counsel prior to implementing workplace drug testing. Other forms of testing, such as random, are not prohibited under the Act, but must be implemented carefully.
Employers covered by the Act should work with counsel to update these policies in light of the recent Amended Regulations. Employers electing not to be covered by the Drug-free Workplace Act should ask themselves … why not?