Current Status Bill Number:46 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19970114 Primary Sponsor:McConnell All Sponsors:McConnell, Passailaigue, Ravenel and Ford Drafted Document Number:council\legis\bills\bbm\9008jm. 97 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Workers' compensation insurance, merit rating system; alcohol, narcotics and drugs
Body Date Action Description Com Leg Involved
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Senate 19970114 Introduced, read first time, 11 SJ
referred to Committee
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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.