H 3777 Session 111 (1995-1996)
H 3777 General Bill, By Neilson, Allison, Inabinett, Littlejohn, Rice,
Richardson, Robinson, Sandifer, Stille, Stuart, Vaughn and Whipper
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 10
to Title 8 so as to authorize certain drug and alcohol testing of prospective
state employees.
03/09/95 House Introduced and read first time HJ-4
03/09/95 House Referred to Committee on Labor, Commerce and
Industry HJ-5
04/19/95 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-8
04/26/95 House Amended HJ-51
04/26/95 House Read second time HJ-52
04/27/95 House Read third time and sent to Senate HJ-8
05/01/95 Senate Introduced and read first time SJ-22
05/01/95 Senate Referred to Committee on Judiciary SJ-22
AMENDED
April 26, 1995
H. 3777
Introduced by REPS. Neilson, Inabinett, Robinson, Littlejohn,
S. Whipper, Sandifer, Rice, Allison, Stuart, Stille, Richardson and
Vaughn
S. Printed 4/26/95--H.
Read the first time March 9, 1995.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 10 TO TITLE 8 SO AS TO
AUTHORIZE CERTAIN DRUG AND ALCOHOL TESTING OF
PROSPECTIVE STATE EMPLOYEES.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 8 of the 1976 Code is amended by adding:
"CHAPTER 10
Drug Testing for
Prospective State Employees
Section 8-10-10. This chapter may be cited as the `South
Carolina Prospective Employee Drug Testing Act'.
Section 8-10-20. As used in this chapter:
(1) `Drugs' means any substance described in Schedules I
through V, contained in Chapter 44 of Title 53;
(2) `Employer' means South Carolina and its agencies and
departments;
(3) `Prospective employee' means a person who has made
written or oral application to an employer to become an employee;
(4) `Sample' means urine, blood, breath, saliva, or hair.
Section 8-10-30. An employer may test prospective employees
for the presence of drugs, in accordance with this chapter, when the
prospective employee is offered a particular position before the final
hiring selection is made. Written notice that a prospective
employee may be subject to testing for the presence of drugs must
be given to the prospective employee at the time of application.
Section 8-10-40. An employer may require samples from his
prospective employees and may require presentation of reliable
identification to the person collecting the samples. Collection of the
sample must be in conformance with the requirements of this
chapter, and enough sample must be taken for the initial test of the
employer and a confirmation test. The employer may designate the
type of sample to be used for this testing.
Section 8-10-50. An employer shall pay all costs of the initial
testing and confirmation testing for drugs required by the employer.
A confirmation test must be conducted automatically if the initial
test is positive. The prospective employee, if he desires retesting in
the manner provided by this chapter, shall pay the costs of retesting.
Section 8-10-60. All sample collection and testing for drugs
under this chapter must be performed in accordance with the
following conditions:
(1) The collection of samples must be performed under
reasonable, dignified, and sanitary conditions.
(2) Sample collections must be documented, and documentation
procedures must include:
(a) labeling of samples to preclude the probability of
erroneous identification of test results;
(b) an opportunity for the prospective employee to provide
notification of information which may be considered relevant to the
test, including identification of currently or recently used
prescriptions or nonprescription drugs or other relevant medical
information.
(3) Sample collection, storage, and transportation to the place of
testing must be performed to preclude the probability of sample
contamination or adulteration.
(4) Sample testing must comply with scientifically accepted
analytical methods and procedures. Initial testing and confirmation
testing must be conducted at a laboratory approved or certified by
the Department of Health and Environmental Control or a federal
agency for this purpose. Testing must include verification or
confirmation of positive test results by gas chromatography, gas
chromatography-mass spectroscopy, or other comparably reliable
analytical method before the result of a test may be used as a basis
for an action by an employer.
Section 8-10-70. (A) The Budget and Control Board shall
establish guidelines and model policies for the testing required by
this chapter for use by state agencies and departments.
(B) Testing or retesting for the presence of drugs by an
employer must be carried out within the terms of a written policy
which is consistent with policies and guidelines established by the
Budget and Control Board and available for review by prospective
employees.
(C) Within the terms of the written policy, an employer may
require the collection and testing of samples to determine a
prospective employee's ability to perform specified duties in the
workplace efficiently and with safety for other employees and the
general public.
(D) The employer's use and disposition of all drug test results
are subject to the limitations of this chapter.
Section 8-10-80. Upon receipt of a verified or confirmed positive
drug test result which indicates a violation of the employer's written
policy, or upon the refusal of a prospective employee to provide a
sample, an employer may use that test or refusal as the basis for
refusal to hire the prospective employee.
Section 8-10-90. If the initial drug test of the prospective
employee is positive, the employer shall submit a portion of the
sample taken for a confirmation test at an approved laboratory. If
the results of the confirmation test also are positive, the overall
testing may be considered positive by the employer. If the results
of the confirmation test are negative, then the results of that test are
considered invalid, and another test from a different sample must be
conducted if the prospective employee desires. The employer in
this event may give no consideration to the results of the first test
when determining whether or not to hire the prospective employee.
Section 8-10-100. No cause of action arises in favor of a person
against an employer who has established a policy and initiated a
testing program in accordance with this chapter for any of the
following:
(1) failure to test for drugs or failure to test for a specific drug
or other substance;
(2) failure to test for, or, if tested for, failure to detect, a
specific drug or other substance, disease, infectious agent, virus, or
other physical abnormality, problem, or defect of any kind; or
(3) termination or suspension of a drug testing program or
policy.
Section 8-10-110. (A) No cause of action arises in favor of a
person against an employer who has established a program of drug
testing in accordance with this chapter, unless the employer's action
was based on a false test result.
(B) In a claim, including a claim under this chapter, where it is
alleged that an employer's action was based on a false test result:
(1) It is permissible to infer that the test result was valid if
the employer complied with this chapter.
(2) The employer is not liable for monetary damages if his
reliance on a false test result was reasonable and in good faith.
Section 8-10-120. No cause of action for defamation of
character, libel, slander, or damage to reputation arises in favor of a
person against an employer who has established a program of drug
testing in accordance with this chapter, unless:
(1) The results of that test were disclosed to a person other than
the employer, an authorized employee or agent of the employer, or
the tested prospective employee.
(2) The information disclosed was a false test result.
(3) The false test result was disclosed with malice.
(4) All elements of an action for defamation of character, libel,
slander, or damage to reputation, as established by statute or
common law, are satisfied.
Section 8-10-130. No cause of action arises in favor of a person
based upon the failure of an employer to establish a program or
policy of drug testing.
Section 8-10-140. All information, interviews, reports,
statements, memoranda, or test results received by the employer
through his drug testing program are confidential communications
and must not be used or received in evidence, obtained in
discovery, or disclosed in a public or private proceeding, except in
a proceeding related to an action taken by an employer under this
chapter.
Section 8-10-150. Nothing in this chapter prohibits an agency or
department of this State which has a drug testing program in
existence on the effective date of this chapter from continuing the
program if the program is at a minimum equal to the provisions or
requirements of this chapter and the guidelines and policies
established by the Budget and Control Board pursuant to this
chapter."
SECTION 2. This act takes effect upon approval by the
Governor.
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