S 46 Session 112 (1997-1998)
S 0046 General Bill, By McConnell, Ford, Passailaigue and Ravenel
Similar(H 3945)
A BILL TO AMEND SECTION 38-73-500, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO THE MERIT RATING SYSTEM FOR WORKERS' COMPENSATION INSURANCE,
SO AS TO REQUIRE THE INCLUSION OF A CREDIT FOR AN INSURED WHO PARTICIPATES IN
A PROGRAM DESIGNATED TO PREVENT THE USE OF DRUGS ON THE JOB BY EMPLOYEES OF
THE INSURED, PROVIDE FURTHER FOR THE CREDIT, AND PROVIDE FOR THE PROMULGATION
OF CERTAIN REGULATIONS.-SHORT TITLE
01/14/97 Senate Introduced and read first time SJ-100
01/14/97 Senate Referred to Committee on Judiciary SJ-100
A BILL
TO AMEND SECTION 38-73-500, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
MERIT RATING SYSTEM FOR WORKERS' COMPENSATION
INSURANCE, SO AS TO REQUIRE THE INCLUSION OF A
CREDIT FOR AN INSURED WHO PARTICIPATES IN A
PROGRAM DESIGNED TO PREVENT THE USE OF DRUGS ON
THE JOB BY EMPLOYEES OF THE INSURED, PROVIDE
FURTHER FOR THE CREDIT, AND PROVIDE FOR THE
PROMULGATION OF CERTAIN REGULATIONS; AND TO
AMEND SECTIONS 42-9-60, RELATING TO THE PRECLUSION
OF WORKERS' COMPENSATION WHEN INJURY OR DEATH
IS CAUSED BY INTOXICATION OR WILFULNESS OF THE
EMPLOYEE, AND 42-11-100, AS AMENDED, RELATING TO
OCCUPATIONAL DISEASES UNDER THE WORKERS'
COMPENSATION LAW AND THE EXCEPTION AS TO THE
PAYMENT OF COMPENSATION FOR A DISABILITY
RESULTING FROM THE EMPLOYEE'S INTOXICATION OR
WILFUL INTENT TO INJURE HIMSELF, SO AS TO ESTABLISH
A PRESUMPTION THAT AN INJURY WAS OCCASIONED
PRIMARILY BY INTOXICATION OF, OR BY THE INFLUENCE
OF A DRUG UPON, AN EMPLOYEE UNDER CERTAIN
CIRCUMSTANCES, ALLOW AN EMPLOYER, UNDER
CERTAIN CONDITIONS, TO REQUIRE AN EMPLOYEE TO
SUBMIT TO A TEST FOR THE PRESENCE OF ANY DRUG OR
ALCOHOL IN THE EMPLOYEE'S SYSTEM, ESTABLISH A
PRESUMPTION FOR THE SITUATION WHERE THE
EMPLOYEE REFUSES TO SUBMIT TO A TEST, PROVIDE
THAT A COVERED EMPLOYEE OR DEPENDENT OF A
COVERED EMPLOYEE IS NOT ENTITLED TO
COMPENSATION OR BENEFITS IF THE PRIMARY CAUSE OF
THE ACCIDENT OR PERSONAL INJURY TO THE EMPLOYEE
OR CO-WORKER OR OTHER PERSON WAS THE RESULT OF
CERTAIN SPECIFIED CONDITIONS OR ACTIVITY, AND
PROVIDE THAT A COVERED EMPLOYEE'S EMPLOYMENT
IS SUBJECT TO THE REQUIREMENTS OF A DRUG-FREE
WORKPLACE PROGRAM THAT COMPLIES WITH CERTAIN
GUIDELINES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 38-73-500 of the 1976 Code, as last amended
by Section 783 of Act 181 of 1993, is further amended to read:
"Section 38-73-500. (A) For the purpose of uniformity
and equality the director or his designee shall approve a system of
merit rating for use in the writing of workers' compensation
insurance. No system of merit rating except the one so approved may
be used.
(B) This system of merit rating shall include a credit for an
insured who participates in a program designed to prevent the use of
drugs on the job by employees of the insured. The credit must be
actuarially sound and filed by the director or his designee. The
director or his designee shall promulgate appropriate regulations for
the implementation of this subsection."
SECTION 2. Section 42-9-60 of the 1976 Code is amended to
read:
"Section 42-9-60. (A) No compensation shall be
is payable if the injury or death was occasioned by the
intoxication of the employee or by the wilful intention of the
employee to injure or kill himself or another.
(B)(1) If there was at the time of the injury one-tenth of one
percent (0.10) or more by weight of alcohol in the employee's blood,
or if the employee has a positive confirmation of a drug, it must be
presumed that the injury was occasioned primarily by the intoxication
of, or by the influence of the drug upon, the employee.
(2) If, after an injury to an employee, an employer has reason to
suspect that the injury was occasioned primarily by the intoxication
of the employee or by the use of any drug that affected the employee
to the extent that the employee's normal faculties were impaired, the
employer may require the employee to submit to a test for the
presence of any drug or alcohol in the employee's system. If the
employee refuses to submit to a test of nonprescription controlled
substances or alcohol, it must be presumed that, in the absence of
clear and convincing evidence to the contrary, the injury was
occasioned primarily by the influence of a nonprescription controlled
substance or alcohol.
(C) A covered employee or dependent of a covered employee is
not entitled to compensation or benefits if the primary cause of the
accident or personal injury to the employee or co-worker or other
person was:
(1) the intoxication of the covered employee while on duty;
(2) the effect on the covered employee of a depressant,
hallucinogenic, hypnotic, narcotic, or stimulant drug that was not
administered or taken in accordance with the prescription of a
physician; or
(3) the effect on the covered employee of another drug that was
not administered or taken in accordance with the prescription of a
physician and that makes the covered employee incapable of
satisfactory job performance.
(D) The covered employee's employment is subject to the
requirements of a drug-free workplace program that complies with
the guidelines established by law which shall include:
(1) a substance abuse policy statement that balances the
employer's respect for individuals with the need to maintain a safe,
productive, and drug-free environment. The intent of the policy shall
be to help those who need it while sending a clear message that the
illegal use of drugs or the abuse of alcohol is incompatible with
employment at the specified workplace;
(2) an Employee Assistance Program (EAP) that serves as a
resource to which employees and their families can turn for
confidential, professional assistance. The EAP shall establish a way
for troubled employees to seek help directly or for supervisors to
refer these employees whose problems are affecting job performance.
The employee assistance professional shall conduct a thorough,
confidential assessment and then provide a short-term therapy or refer
the employee to an appropriate thereapist, workplace program, the
EAP shall provide training for supervisors and managers, as well as
education to make employees aware of the assistance program and
how it works; and
(3) alcohol and drug testing for applicants and for employees
both after an accident and after treatment in lieu of termination."
SECTION 3. Section 42-11-100(2) of the 1976 Code is further
amended to read:
"(2)(a) For any disability resulting from the employee's
intoxication or wilful intent to injure himself.
(b)(i) If there was at the time of the injury one-tenth of one
percent (0.10) or more by weight of alcohol in the employee's blood,
or if the employee has a positive confirmation of a drug, it must be
presumed that the injury was occasioned primarily by the intoxication
of, or by the influence of the drug upon, the employee.
(ii) If, after an injury to an employee, an employer has reason
to suspect that the injury was occasioned primarily by the
intoxication of the employee or by the use of any drug that affected
the employee to the extent that the employee's normal faculties were
impaired, the employer may require the employee to submit to a test
for the presence of any drug or alcohol in the employee's system. If
the employee refuses to submit to a test of nonprescription controlled
substances or alcohol, it must be presumed that, in the absence of
clear and convincing evidence to the contrary, the injury was
occasioned primarily by the influence of a nonprescription controlled
substance or alcohol.
(c) A covered employee or dependent of a covered
employee is not entitled to compensation or benefits if the primary
cause of the accident or personal injury to the employee or co-worker
or other person was:
(i) the intoxication of the covered employee while on duty;
(ii) the effect on the covered employee of a depressant,
hallucinogenic, hypnotic, narcotic, or stimulant drug that was not
administered or taken in accordance with the prescription of a
physician; or
(iii) the effect on the covered employee of another drug that
was not administered or taken in accordance with the prescription of
a physician and that makes the covered employee incapable of
satisfactory job performance.
(d) The covered employee's employment is subject to the
requirements of a drug-free workplace program that complies with
the guidelines established by law which shall include:
(i) a substance abuse policy statement that balances the
employer's respect for individuals with the need to maintain a safe,
productive, and drug-free environment. The intent of the policy shall
be to help those who need it while sending a clear message that the
illegal use of drugs or the abuse of alcohol is incompatible with
employment at the specified workplace;
(ii) an Employee Assistance Program (EAP) that serves as a
resource to which employees and their families can turn for
confidential, professional assistance. The EAP shall establish a way
for troubled employees to seek help directly or for supervisors to
refer these employees whose problems are affecting job performance.
The employee assistance professional shall conduct a thorough,
confidential assessment and then provide a short-term therapy or refer
the employee to an appropriate thereapist, workplace program, the
EAP shall provide training for supervisors and managers, as well as
education to make employees aware of the assistance program and
how it works; and
(iii) alcohol and drug testing for applicants and for employees
both after and accident and after treatment in lieu of
termination."
SECTION 4. This act takes effect upon approval by the Governor.
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