South Carolina General Assembly
115th Session, 2003-2004

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Bill 5119

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Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

May 5, 2004

H. 5119

Introduced by Rep. Cato

S. Printed 5/5/04--H.

Read the first time April 14, 2004.

            

THE COMMITTEE ON

LABOR, COMMERCE AND INDUSTRY

To whom was referred a Bill (H. 5119) to amend Section 41-35-120, Code of Laws of South Carolina, 1976, relating to disqualification for benefits of an insured worker under the employment security law, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/ SECTION    1.    Section 41-35-120(2) of the 1976 Code is amended to read:

"(2)    Discharge for cause connected with the employment. - (a) If the commission finds that he has been discharged for cause connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request, and continuing not less than five nor more than the next twenty-six weeks, (in addition to the waiting period), with a corresponding and mandatory reduction of the insured worker's benefits to be calculated by multiplying his weekly benefit amount by the number of weeks of his disqualification. The ineligibility period must be determined by the commission in each case according to the seriousness of the cause for discharge. A charge of discharge for cause connected with the employment may not be made for failure to meet production requirements unless the failure is occasioned by wilful failure or neglect of duty. 'Cause connected with the employment' as used herein shall require in this item requires more than a failure in good performance of the employee as the result of inability or incapacity.

(b)    An insured worker is considered to have been discharged for cause pursuant to this item, and is ineligible for benefits if the:

(i)    company has communicated a policy prohibiting the illegal use of drugs, the violation of which may result in termination; and

(ii)    insured worker fails or refuses to provide a specimen pursuant to a request from the employer, or otherwise fails or refuses to cooperate by providing an adulterated specimen; or

(iii)    insured worker makes an admission to the employer that he uses, has used, or is using illegal drugs; or that he uses, has used, or is using legal drugs unlawfully. For purposes of this item, 'unlawfully' means without a prescription, or outside the scope of that prescribed by a board-certified physician; or

(iv)    insured worker provides a blood, hair, or urine specimen during a drug test administered on behalf of the employer, which tests positive for illegal drugs, provided:

(A)    the sample was collected and labeled by a licensed health care professional or another individual authorized to collect and label test samples by federal or state law, including law enforcement personnel; and

(B)    the test was performed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, the State Law Enforcement Division, or another recognized authority; and

(C)    any initial positive test was confirmed on the specimen using the gas chromatography/mass spectrometry method, or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse.

(c)    Notwithstanding the provisions of item (2)(b)(iii), if an insured worker makes an admission as defined in it pursuant to the employer's policy, which provides that voluntary admissions made before the employer's request to the employee to submit to testing may protect an employee from immediate termination, then the admission is inadmissible for purposes of this section as long as the:

(A)    employer has communicated a written policy, which provides protection from immediate termination for employees who voluntarily admit prohibited drug use before the employer's request to submit to a test; and

(B)    employee makes the admission specifically pursuant to the employer's policy.

(d)    Information, interviews, reports, and drug-test results, written or otherwise, received by an employer through a drug-testing program may be used or received in evidence in proceedings conducted pursuant to the provisions of this title for the purposes of determining eligibility for unemployment compensation,

including any administrative or judicial appeal."

SECTION    2.    This act takes effect upon approval by the Governor. /

Renumber sections to conform.

Amend title to conform.

HARRY F. CATO for Committee.

            

A BILL

TO AMEND SECTION 41-35-120, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DISQUALIFICATION FOR BENEFITS OF AN INSURED WORKER UNDER THE EMPLOYMENT SECURITY LAW, SO AS TO PROVIDE THE WORKER IS INELIGIBLE FOR BENEFITS IF HE REFUSES TO TAKE A DRUG TEST OR TESTS POSITIVE DURING A DRUG TEST FOR CERTAIN SUBSTANCES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 41-35-120(2) of the 1976 Code is amended to read:

"(2)    Discharge for cause connected with the employment. - (a) If the commission finds that he has been discharged for cause connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request, and continuing not less than five nor more than the next twenty-six weeks, (in addition to the waiting period), with a corresponding and mandatory reduction of the insured worker's benefits to be calculated by multiplying his weekly benefit amount by the number of weeks of his disqualification. The ineligibility period must be determined by the commission in each case according to the seriousness of the cause for discharge. A charge of discharge for cause connected with the employment may not be made for failure to meet production requirements unless the failure is occasioned by wilful failure or neglect of duty. 'Cause connected with the employment' as used herein shall require in this item requires more than a failure in good performance of the employee as the result of inability or incapacity.

(b)    An insured worker is considered to have been discharged for cause pursuant to this item, and is ineligible for benefits if the:

(i)    company has communicated a policy prohibiting the use of drugs, the violation of which may result in termination; and

(ii)    insured worker fails or refuses to provide a specimen pursuant to a request from the employer, or otherwise fails or refuses to cooperate by providing an adulterated specimen; or

(iii)    insured worker makes an admission to the employer that he uses, has used, or is using illegal drugs; or that he uses, has used, or is using legal drugs unlawfully. For purposes of this item, 'unlawfully' means without a prescription, or outside the scope of that prescribed by a board-certified physician. For purposes of this item, an 'admission' may consist of either a statement signed and dated by:

(A)    the individual attesting to the above; or

(B)    at least two employer representatives, attesting that they have witnessed the individual make the admission; or

(iv)    insured worker provides a urine specimen during a drug test administered on behalf of the employer, which tests positive for either opiates, amphetamines, THC, or PCP, provided:

(A)    the sample was collected and labeled by a licensed health care professional or another individual authorized to collect and label test samples by federal or state law, including law enforcement personnel; and

(B)    the test was performed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, the State Law Enforcement Division, or another recognized authority; and

(C)    any initial positive test was confirmed on the original specimen using the gas chromatography/mass spectrometry method, or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse.

(c)    Notwithstanding the provisions of item (2)(b)(iii), if an insured worker makes an admission as defined in it pursuant to the employer's policy, which provides that voluntary admissions made before the employer's request to the employee to submit testing may protect an employee from immediate termination, then the admission is inadmissible for purposes of this section as long as the:

(A)    employer has communicated a written policy, which provides protection from immediate termination for employees who voluntarily admit prohibited drug use prior to the employer's request to submit to a test; and

(B)    employee makes the admission specifically pursuant to the employer's policy."

SECTION    2.    This act takes effect upon approval by the Governor.

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