H 3887 Session 112 (1997-1998)
H 3887 General Bill, By Neilson, Askins, Bailey, Barfield, Barrett, Battle,
Beck, Bowers, G. Brown, H. Brown, Campsen, Cato, Chellis, Dantzler, Davenport,
Gamble, Gourdine, Govan, Harvin, J. Hines, Hinson, Inabinett, Keegan,
M.H. Kinon, Knotts, Koon, Leach, L.H. Limbaugh, Littlejohn, Lloyd, Mason,
McCraw, Meacham, Miller, Phillips, Rice, Riser, Rodgers, Sandifer, Seithel,
R. Smith, Stille, E.C. Stoddard, Vaughn and Walker
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.
04/09/97 House Introduced and read first time HJ-49
04/09/97 House Referred to Committee on Labor, Commerce and
Industry HJ-49
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.
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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