H 3491 Session 110 (1993-1994)
H 3491 General Bill, By Neilson, Allison, Breeland, G. Brown, Canty,
C.D. Chamblee, Cobb-Hunter, R.S. Corning, Davenport, Fair, S.E. Gonzales, Govan,
Harrell, Harrison, B.H. Harwell, J. Hines, D.N. Holt, H.G. Hutson, Inabinett,
Lanford, M. McLeod, McMahand, Meacham, Quinn, Richardson, J.S. Shissias,
C.H. Stone, C.L. Sturkie, Trotter, Vaughn, Walker, Wilder and D.A. Wright
A Bill to amend Title 8, Code of Laws of South Carolina, 1976, relating to
public offices and employees by adding Chapter 10 so as to authorize certain
drug and alcohol testing of prospective state employees.
02/11/93 House Introduced and read first time HJ-34
02/11/93 House Referred to Committee on Labor, Commerce and
Industry HJ-34
04/13/94 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-5
04/27/94 House Debate adjourned HJ-40
04/28/94 House Amended HJ-322
04/28/94 House Read second time HJ-322
04/28/94 House Unanimous consent for third reading on next
legislative day HJ-322
04/29/94 House Read third time and sent to Senate HJ-2
05/03/94 Senate Introduced and read first time SJ-9
05/03/94 Senate Referred to Committee on Judiciary SJ-10
AMENDED
April 28, 1994
H. 3491
Introduced by REPS. Neilson, Quinn, Govan, Cobb-Hunter, G. Brown,
Sturkie, Hutson, Holt, Harwell, Richardson, McLeod, Hines, Breeland,
Canty, Shissias, Davenport, Fair, Trotter, Harrell, Chamblee,
McMahand, Allison, Vaughn, Wright, Inabinett, Gonzales, Harrison,
Corning, Lanford, Walker, Meacham, D. Wilder and Stone
S. Printed 4/28/94--H.
Read the first time February 11, 1993.
A BILL
TO AMEND TITLE 8, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO PUBLIC OFFICES AND EMPLOYEES BY
ADDING CHAPTER 10 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, as contained in Chapter 44 of Title 53;
(2) `Employer' means the State of South Carolina and any of its
agencies and departments;
(3) `Prospective employee' means a person who has made
application to an employer, whether written or oral, 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 the provisions of 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 if desired by the prospective employee. 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
for drugs required by the employer, and the prospective employee, if he
desires confirmation testing or 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 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 any information which may be considered as 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 so as 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 any 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 which is available for review by prospective
employees.
(C) Within the terms of the written policy, an employer may require
the collection and testing of samples for the purpose of determining 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 prospective employee is entitled to require the employer
to submit the remaining portion of the sample taken to an approved
laboratory for a confirmation test. If the results of the confirmation test
are also 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, any 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 any drug or 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 the provisions of this chapter; and
(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; and
(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 may not be used
or received in evidence, obtained in discovery, or disclosed in any 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 such a program;
provided, that 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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