H 3489 Session 109 (1991-1992)
H 3489 General Bill, By Neilson, J.J. Bailey, D.W. Beatty, G.A. Brown, Cato,
Cork, Elliott, T.L. Farr, R.C. Fulmer, Harvin, B.H. Harwell, Haskins,
W.S. Houck, Keegan, K.G. Kempe, J.R. Klapman, Lanford, Littlejohn,
C.V. Marchbanks, Martin, McCraw, A.C. McGinnis, McKay, Meacham, Phillips,
J. Rama, R. Smith, Vaughn, C.C. Wells and Young-Brickell
A Bill to amend Title 8, Code of Laws of South Carolina, 1976, relating to
public offices and employees by adding Chapter 14 so as to establish uniform
standards for pre-employment and employment drug testing of state employees,
to require this drug testing under certain conditions, and to provide
procedures for the confidentiality, reliability, and fairness of this drug
testing.
02/12/91 House Introduced and read first time HJ-6
02/12/91 House Referred to Committee on Labor, Commerce and
Industry HJ-6
A BILL
TO AMEND TITLE 8, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO PUBLIC OFFICES AND EMPLOYEES BY
ADDING CHAPTER 14 SO AS TO ESTABLISH UNIFORM
STANDARDS FOR PRE-EMPLOYMENT AND EMPLOYMENT
DRUG TESTING OF STATE EMPLOYEES, TO REQUIRE THIS
DRUG TESTING UNDER CERTAIN CONDITIONS, AND TO
PROVIDE PROCEDURES FOR THE CONFIDENTIALITY,
RELIABILITY, AND FAIRNESS OF THIS DRUG TESTING.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that:
(1) A healthy and productive state work force, safe working
conditions free from the effects of drugs, and maintenance of the quality
of products made and services rendered in this State are important to the
State, its employees, and the general public.
(2) Certain drug testing procedures are necessary to protect
persons participating in workplace drug testing programs.
(3) In balancing the interests of the State, its employees, and the
welfare of the general public, the General Assembly concludes that fair
and accurate testing for drugs in the state public sector workplace is in
the best interest of all.
SECTION 2. Title 8 of the 1976 Code is amended by adding:
"CHAPTER 14
Drug Testing of State Employees
Section 8-14-10. As used in this chapter, the following definitions
apply:
(1) `Confirmation test' means a drug test on a specimen to
substantiate the results of a prior drug test on the specimen. The
confirmation test must use an alternate method of equal or greater
sensitivity than that used in the previous drug test.
(2) `Drug' means an illegal drug, a prescription or nonprescription
medication, or ethyl alcohol.
(3) `Drug test' means a chemical test administered for the purpose
of determining the presence or absence of a drug or metabolites in a
person's bodily fluids.
(4) `Employee' means a person who, for remuneration or pursuant
to any contract for hire, supplies a service to this State as its employer.
(5) `Employee assistance program' means a program provided by
an employer offering assessment, short-term counseling, and referral
services to employees, including drug, alcohol, and mental health
programs.
(6) `Employer' means this State and any of its agencies or
departments.
(7) `Illegal drug' means any substance, other than alcohol, having
psychological or physiological effects, or both, on a human being and
that is not a prescription or nonprescription medication, including
controlled dangerous substances and controlled substance analogies or
volatile substances which produce the psychological or physiological
effects, or both, of a controlled dangerous substance through deliberate
inhalation.
(8) `Initial test' means an initial drug test to determine the
presence or absence of drugs or their metabolites in specimens.
(9) `Neutral selection basis' means a mechanism for selecting
employees for drug tests that results in an equal probability that an
employee from a group of employees subject to the selection mechanism
will be selected and does not give an employer discretion to waive the
selection of an employee selected under the mechanism.
(10) `Prescription or nonprescription medication' means a drug
prescribed for use by a duly licensed physician, dentist, or other medical
practitioner licensed to issue prescriptions or a drug that is authorized
pursuant to federal or state law for general distribution and use without
a prescription in the treatment of human diseases, ailments, or injuries.
(11) `Reasonable suspicion drug testing' means drug testing based
on a belief that an employee is using or has used drugs in violation of
the employer's policy drawn from specific objective and articulable facts
and reasonable inferences drawn from those facts in light of experience,
and may be based upon, among other things:
(a) observable phenomena, such as direct observation of drug use
or the physical symptoms or manifestations of being under the influence
of a drug;
(b) abnormal conduct or erratic behavior while at work,
absenteeism, tardiness, or deterioration in work performance;
(c) a report of drug use provided by reliable and credible sources
and which has been independently corroborated;
(d) evidence that an individual has tampered with a drug test
during his employ with the current employer;
(e) information that an employee has caused or contributed to an
accident while at work;
(f) evidence that an employee is involved in the use, possession,
sale, solicitation, or transfer of drugs while working or while on the
employer's premises or operating the employer's vehicle, machinery, or
equipment.
(12) `Specimen' means a tissue or product of the human body
chemically capable of revealing the presence of drugs in the human
body.
Section 8-14-20. (A) An employee who is required by an
employer to submit to a drug test must be provided, at least thirty days
before the implementation of a drug testing program, a written policy
statement from the employer which contains:
(1) a general statement of the employer's policy on employee
drug use which must identify both the grounds on which an employee is
required to submit to a drug test and the actions the employer may take
against an employee on the basis of a positive confirmed drug test result,
or other violation of the employer's drug use policy;
(2) a statement advising the employee of the existence of this
chapter;
(3) a general statement concerning confidentiality;
(4) procedures for how employees can confidentially report
the use of prescription or nonprescription medications before being
tested;
(5) circumstances under which drug testing may occur and a
description of which positions are subject to testing on a reasonable
suspicion, neutral selection, or other basis;
(6) the consequences of refusing to submit to a drug test;
(7) information on opportunities for assessment and
rehabilitation if an employee has a positive confirmed test result and the
employer determines that discipline or discharge is not necessary or
appropriate;
(8) a statement that an employee who receives a positive
confirmed drug test result may contest the accuracy of that result or
explain it;
(9) a list of all drugs for which the employer might test. Each
drug must be described by its brand name or common name, as
applicable, as well as its chemical name.
(10) a statement regarding any applicable terms of the
employment relationship.
(B) The employer shall post the notice in an appropriate and
conspicuous location on the employer's premises and copies of the
policy must be available for inspection during regular business hours by
employees in the employer's personnel office or other suitable locations.
The Budget and Control Board shall develop standard language for
those sections of drug testing notices described in items (2), (3), and (4)
of subsection (A) of this section.
(C) An employer who conducts job applicant drug testing shall
notify the applicant, in writing, upon application and before the
collection of the specimen for the drug test, that the applicant may be
tested for the presence of drugs or their metabolites.
(D) An employee or job applicant required to submit to a drug test
may be requested by an employer to sign a statement indicating that he
has read and understands the employer's drug testing policy and notice.
An employee's or job applicant's refusal to sign the statement does not
invalidate the results of any drug test, bar the employer from
administering the drug test or from taking action consistent with the
terms of the employer's drug testing policy, or from refusing to hire the
job applicant.
Section 8-14-30. (A) All drug testing conducted by employers
must be in conformity with the standards established in this section,
other applicable provisions of this chapter, and all applicable regulations
promulgated pursuant to this chapter.
(B) An employer shall conduct the types of drug tests enumerated
in subsections (C), (D), and (E) of this section under the terms and
conditions specified by this chapter upon the Budget and Control Board
determining that the procedures for the testing authorized by this chapter
are in place and that this testing can be administered to all employees of
the State on a statewide basis. Upon making these determinations, the
Budget and Control Board shall order state agencies and departments to
implement the testing procedures authorized by this chapter.
(C) Job applicant testing is authorized in the manner provided in
this chapter. Employers can require job applicants to submit to a drug
test as a condition of the employment application and may use a refusal
to submit to a test or positive confirmed test result as a basis for refusal
to hire.
(D) Reasonable suspicion drug testing is authorized in the manner
provided in this chapter. An employer may require all employees to
submit to a reasonable suspicion drug testing where the employer has a
reasonable suspicion the employee is using illegal drugs. It is
permissible to infer that the employer had reasonable suspicion to test
for drugs if the specimen provided by the employee tested positive for
drugs in a confirmatory drug test.
(E) Neutral selection, routine, and follow-up testing is authorized
in the manner provided in this chapter. An employer may require an
employee to submit to a drug test on a neutral selection basis when the
nature of the employee's position would create a health or safety risk to
the employee, fellow employees, or the public, or a security risk in the
workplace, should the employee be affected by the use of a drug.
(F) An employer may require an employee to submit to a neutral
selection or routine drug test if the test is conducted as part of a routinely
scheduled employee fitness for duty medical examination that is part of
the employer's established policy or which is scheduled routinely for all
members of an employment classification or group.
(G) An employer may require an employee to submit to a neutral
selection or routine drug test if the employee in the course of his
employment enters a drug abuse rehabilitation program, and as a
follow-up to such rehabilitation, or if previous drug testing of the
employee within a twelve month period resulted in a positive confirmed
test result.
(H) If an employee is participating in drug abuse rehabilitation,
drug testing may be conducted by the rehabilitation provider as
considered appropriate by the provider.
Section 8-14-40. All specimen collection and testing for drugs
under this chapter must be performed in accordance with the following
procedures:
(1) The collection of specimens must be performed under
reasonable and sanitary conditions. Individual dignity must be
preserved to the extent practicable.
(2) Specimens must be collected in a manner reasonably
calculated to prevent substitution of specimens and interference with the
collection or testing of specimens.
(3) Specimen collection must be documented and the
documentation procedures include:
(a) labeling of specimen containers so as to reasonably preclude
the likelihood of erroneous identification of test results;
(b) an opportunity for the employee or applicant to provide
any information that he considers relevant to the test, including
identification of currently or recently used prescription or
nonprescription drugs, or other relevant medical information. The
provision of this information does not preclude the administration of the
drug test, but must be taken into account in interpreting any positive
confirmed results.
(4) Specimen collection, storage, and transportation to the testing
site must be performed in a manner which reasonably precludes
specimen contamination or adulteration.
(5) Specimen testing for drugs must conform to scientifically
accepted analytical methods and procedures.
(6) Each confirmation test conducted under this chapter, not
including the taking or collecting of a specimen to be tested, must be
conducted by a laboratory approved in the manner provided by this
chapter.
(7) A specimen for a drug test must be taken or collected by any
of the following persons:
(a) a physician licensed pursuant to Chapter 47 of Title 40, or a
nurse licensed pursuant to Chapter 33 of Title 40;
(b) a qualified person employed by an approved laboratory;
(c) a person considered qualified by the Budget and Control
Board.
(8) The Budget and Control Board, through appropriate state
agencies, shall cause to be established a program to train and certify
persons to collect specimens and conduct on-site drug tests in the
workplace. Employers may designate employees for this training and
certification, or may utilize any person so trained and certified.
(9) A person who collects or takes a specimen for a drug test
conducted pursuant to this chapter shall collect an amount sufficient for
two drug tests as defined by the Budget and Control Board.
(10) Any drug testing conducted or requested by an employer must
occur during or immediately after the regular work period of current
employees, and is considered to be performed during work time for
purposes of determining compensation and benefits for current
employees.
(11) A specimen that produces a positive confirmed result must be
preserved in a frozen state by the approved laboratory that conducts the
confirmation test for ninety days from the time the result of the positive
confirmed test is mailed or otherwise delivered to the employer. During
this period, the employee who has provided the specimen must be
permitted by the employer to have a portion of the specimen retested, at
the employee's expense, at an approved laboratory chosen by the
employee. The laboratory that has performed the test for the employer
is responsible for the transfer of the portion of the specimen to be
retested, and for the integrity of the chain-of-custody during the transfer.
(12) Within five working days after receipt of a positive confirmed
test result report from the testing laboratory, an employer shall inform,
in writing, an employee of the positive test result and inform the
employee in writing of the consequences of the report and the options
available to him.
(13) An employee may request and receive from the employer a
copy of the test result report.
(14) Within ten working days after receiving notice of a positive
confirmed test result, the employee may submit information to an
employer explaining the test results, and why the results do not
constitute a violation of the employer's policy. If an employee's
explanation of the positive test result is not satisfactory to the employer,
a written explanation submitted by the employer as to why the
employee's explanation is unsatisfactory, along with the report of
positive results, must be made part of the employee's medical and
personnel records.
(15) An employer may not discharge, discipline, refuse to hire,
discriminate against, or request or require rehabilitation of an employee
on the basis of a positive test result that has not been verified by a
confirmatory test.
(16) In addition to the limitation under item (15), an employer may
not discharge, discipline, or discriminate against an employee for whom
a positive confirmed drug test result was the first time the employee had
tested positive for any drug while in the employ of the employer unless
the following conditions have been met:
(a) the employer has first given the employee an opportunity to
participate in, at the employee's own expense or pursuant to coverage
under an employee benefit plan, drug abuse assessment, and if
necessary, drug abuse rehabilitation; and
(b) the employee has either refused to participate in the
assessment or rehabilitation program or has failed to successfully
complete the program, as evidenced by withdrawal from the program
before its completion or a report from the program indicating
unsatisfactory compliance, or by a positive test result on a confirmatory
test after completion of the program; or
(c) the employee's work performance has been inadequate, or the
employee has caused or contributed to an accident, or the employee has
taken or omitted to take any other action which ordinarily would result
in the discharge or discipline of the employee.
(17) An employer may not discharge, discipline, discriminate
against, or request or require rehabilitation of an employee on the basis
of medical history information revealed to the employer pursuant to this
chapter unless the employee had an affirmative obligation to provide this
information before, upon, or after hire.
(18) An employer who performs on-site drug tests or specimen
collection shall establish chain-of-custody procedures to ensure proper
recordkeeping, handling, labeling, and identification of all specimens to
be tested.
(19) The employer shall pay the costs of all drug tests to which he
requires or requests an employee or job applicant to submit. The
employee or job applicant shall pay the costs of any additional drug tests
requested by the employee or job applicant.
Section 8-14-50. (A) Only approved laboratories may conduct
confirmation drug tests.
(B) All confirmation tests must use an alternate method of equal
or greater sensitivity than that used on the initial drug test.
(C) If an initial drug test is negative, there must be no
confirmation drug test.
Section 8-14-60. (A) An employee or job applicant whose drug
test result is confirmed as positive in accordance with the provisions of
this chapter must not, by virtue of the result alone, be defined as a
person with a `handicap'.
(B) An employer who discharges or disciplines an employee on
the basis of a positive confirmed drug test in accordance with this
chapter is considered to have discharged or disciplined the employee for
cause.
(C) An employee discharged on the basis of a confirmed positive
drug test in accordance with this chapter is considered to have been
discharged for wilful misconduct.
(D) A physician-patient relationship is not created between an
employee or job applicant, and an employer or any person performing
or evaluating the drug test, solely by the establishment or
implementation of a drug testing program.
(E) This chapter does not prevent an employer from establishing
reasonable work rules related to employee possession, use, sale, or
solicitation of drugs, including convictions for drug-related offenses, and
taking action based upon a violation of any of those rules.
(F) This chapter is not retroactive and does not abrogate the right
of an employer to conduct drug tests before the effective date of this
chapter. A drug test conducted by an employer before the effective date
of this chapter is not subject to this chapter.
(G) If an employee refuses to submit to drug testing administered
in accordance with this chapter, the employer is not barred from
discharging, disciplining, or referring the employee to assessment or
drug abuse rehabilitation, or both.
(H) An employer, in addition to any appropriate personnel actions,
may refer an employee found to have violated the employer's policy on
drug use to an employee assistance program for assessment, counseling,
and referral for treatment or rehabilitation as appropriate.
(I) This chapter does not prohibit an employer from conducting
medical screening or other tests required by law for the purpose of
monitoring exposure of employees to toxic or other unhealthy
substances in the workplace or in the performance of job responsibilities.
These screenings or tests are limited to the specific substances expressly
identified in the applicable provision of law, unless prior written consent
of the employee is obtained for other tests.
(J) An employer may temporarily suspend or transfer an employee
to another position after obtaining the results of a positive on-site initial
test or positive confirmed test if the employee's position is one which
would create a health or safety risk to the employee, to fellow
employees, or to the public, should the employee be affected by the use
of a drug.
Section 8-14-70. (A) All information, interviews, reports,
statements, memoranda, and test results, written or otherwise received
by the employer through its drug testing program are confidential
communications and must not be used or received in evidence, obtained
in discovery, or disclosed in any public or private proceedings, except
in accordance with this chapter.
(B) Any information obtained by an employer pursuant to this
chapter is the property of the employer.
(C) An employer may not release to any person other than the
employee or job applicant, or employer medical, supervisory, or other
personnel, as designated by the employer on a need to know basis,
information related to drug test results unless:
(1) the employee or job applicant has expressly, in writing,
granted permission for the employer to release the information;
(2) it is necessary to introduce a positive confirmed test result
into an administrative hearing or a judicial proceeding, provided that
information is relevant to the hearing or proceeding, or the information
must be disclosed to a federal or state agency or other unit of the state
or federal government as required by law or contract, or disclosed to a
drug abuse rehabilitation program for the purpose of evaluation or
treatment of an employee; or
(3) there is a risk to public health or safety that can be
minimized or prevented by the release of the information. Unless the
risk is immediate, a court order permitting the release must be obtained
before the release of the information.
(D) The confidentiality provisions of this section do not apply to
other parts of an employee's or job applicant's personnel or medical files.
(E) If an employee refuses to sign a written consent form for
release of information to persons as permitted in this chapter, the
employer is not barred from discharging or disciplining the employee.
Section 8-14-80. (A) No laboratory may conduct confirmation
drug tests unless the laboratory:
(1) is approved for this purpose by the Budget and Control
Board;
(2) has written testing procedures and written procedures to
ensure a chain-of-custody;
(3) demonstrates satisfactory performance in the proficiency
testing program of the National Institute on Drug Abuse, the College of
American Pathology, or the American Association for Clinical
Chemistry, or the equivalent;
(4) follows proper quality control procedures, including, but
not limited to:
(a) the use of internal quality controls including the use of
samples of known concentrations which are used to check the
performance and calibration of testing equipment, and periodic use of
blind samples for overall accuracy;
(b) an internal review and certification process for test
results, conducted by a person qualified to perform that function in the
testing laboratory;
(c) security measures implemented by the testing laboratory
to preclude adulteration of specimens and test results;
(d) other necessary and proper actions are taken to ensure
reliable and accurate test results.
Section 8-14-90. (A) A laboratory shall disclose to the employer
a written test result report within five working days after the test.
(B) All laboratory reports of a test result must state at a minimum:
(1) the name and address of the laboratory that performed the
test and the positive identification of the person tested;
(2) any positive confirmed drug test results on a specimen
which tested positive on an initial test, or a negative drug test result on
a specimen. Reports must not make reference to initial or confirmatory
tests when reporting positive or negative results;
(3) a list of the drugs tested for;
(4) the type of tests conducted for both initial and
confirmation tests and the cut-off levels of the tests; and
(5) the report must not disclose the presence or absence of any
physical or mental condition or of any drug other than the specific drug
and its metabolites that an employer requests to be identified.
Section 8-14-100. The Budget and Control Board shall promulgate
regulations concerning:
(1) standards for approving drug testing laboratories;
(2) body specimens that are appropriate for drug testing;
(3) methods of analysis and procedures to ensure reliable drug
testing results, including standards for initial tests and confirmatory
tests;
(4) guidelines on how to establish cut-off detection levels for
drugs or their metabolites for the purposes of determining a positive test
result;
(5) chain-of-custody procedures to ensure proper identification,
labeling, and handling of specimens being tested; and
(6) retention and storage procedures to ensure reliable results on
confirmation tests and retests.
Section 8-14-110. (A) A person alleging a violation of this
chapter may bring an action for injunctive relief or damages, or both.
(B) Damages are limited to the recovery of compensatory damages
directly resulting from injury or loss caused by each violation of this
chapter, and do not include noneconomic losses.
(C) A person may bring an action under this chapter only after
first exhausting all applicable grievance procedures or administrative
remedies.
(D) If a violation of this chapter is found and damages are
awarded, reasonable attorney fees may be awarded to the person if the
court finds that an employer has knowingly or recklessly violated this
chapter.
Section 8-14-120. (A) Upon an alleged violation of the
provisions of this chapter, a person shall institute an action in the circuit
court within six months of the alleged violation or the exhaustion of any
administrative remedies available to the person, or be barred from
obtaining relief. Relief may include and is limited to:
(1) an injunction to restrain the continued violation of this
chapter;
(2) the reinstatement of the person to the same position held
before the unlawful drug testing, disciplinary action, or discharge, or to
an equivalent position;
(3) the reinstatement of full employee benefits and seniority
rights;
(4) compensation for lost wages, benefits, and other
remuneration to which the person would have been entitled but for a
violation of this chapter;
(5) payment by the employer of reasonable costs.
(B) An employer who complies with the provisions of this chapter
is immune from all civil actions arising from any drug testing programs
or procedures performed in compliance with this chapter.
(C) Pursuant to a claim alleging a violation of this chapter,
including a claim where it is alleged that an employer's action with
respect to a person was based on an incorrect test result, it is permissible
to infer that the test result was valid if the employer complied with the
provisions of this chapter.
(D) 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) information regarded as confidential is released not in
accordance with an information release form signed by the person or
otherwise not in accordance with this chapter;
(2) the information disclosed was based on an incorrect test
result;
(3) the incorrect test result was disclosed with malice; and
(4) all other elements of an action for defamation of character,
libel, slander, or damage to reputation as established by statute or
common law are satisfied.
(E) No cause of action arises in favor of a person based upon the
failure of an employer to establish a program or policy for drug
testing."
SECTION 3. This act takes effect July 1, 1991.
-----XX----- |