ARTICLE 11

DRUG-FREE WORKPLACE PROGRAM

34-9-410. Legislative intent. (Back to Guidelines)

It is the intent of the General Assembly to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from substance abuse by employees. 

34-9-411. Definitions. (Back to Guidelines)

   As used in this article, the term:

1. “Alcohol” means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.
2. “Chain of custody” means the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials, specimens, or substances and providing for accountability at each stage in handling, testing, and storing materials, specimens, or substances and reporting test results.
3. “Confirmation test,” “confirmed test,” or “confirmed substance abuse test” means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen.  The confirmation test must be different in scientific principle from that of the initial test procedure.  This confirmation method must be capable of providing requisite specificity, sensitivity, and quantitative accuracy.
4. “Drug” means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualene, opiates, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any such substances.  An employer may test an individual for any or all of these.
5. “Employee” means any person who works for salary, wages, or other remuneration for an employer.
6. 1. “Employee Assistance Program” means a worksite focused program designed to assist:
      1. Employer work organizations in addressing employee productivity issues: and
      2. Employee clients in the identification and resolution of job performance problems associated with employees impaired by personal concerns, including, but not limited to, health, marital, family, financial, alcohol, drug, legal, emotional, stress, or other personal issues that may affect job performance.
   2. A minimum level of core services must include consultation and training and assistance to work organization leadership in policy development, organizational development, and critical incident management; professional, confidential, appropriate, and timely problem assessment services; constructive intervention and short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up, monitoring, and case management with providers and insurers; employee education and supervisory training; and quality assurance.
   3. An optimum level of core services must include, in addition to the minimum level core services, the designation of an individual who shall be responsible to administer the employer’s Employee Assistance Program and to certify that the employer work organization’s drug-free workplace program contains all elements of the drug-free workplace program required by Code Section 34-9-413 and that such program satisfies the annual certification requirements of Code Section 34-9-421; provided, however, that such individual shall have training and experience with Employee Assistance Programs in accordance with rules and regulations prescribed by the State Board of Workers’ Compensation.
7. “Employer” means a person or entity that is subject to the provisions of this chapter but shall not include the state or any department, agency, or instrumentality of the state; any county; any county or independent school system; any municipal corporation; or any employer which is self-insured for the purposes of this chapter.
   (7.1)  “Employer member of a group self-insurance fund” means any employer who is a member of a fund certified pursuant to Code Section 34-9-153.
8. “Initial test” means a sensitive rapid, and reliable procedure to identify negative and presumptive positive specimens.  All initial tests shall use an immunoassay procedure or an equivalent procedure or shall use a more accurate scientifically accepted method approved by the National Institute on Drug Abuse as such more accurate technology becomes available in a cost-effective form.
9. “Job applicant” means a person who has applied for a position with an employer and has been offered employment conditioned upon successfully passing a substance abuse test and may have begun work pending the results of the substance abuse test.
10. “Nonprescription medication” means a drug or medication authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries.
11. “Prescription medication” means a drug or medication lawfully prescribed by a physician for an individual and taken in accordance with such prescription.
12. “Reasonable suspicion testing” means substance abuse testing based on a belief that an employee is using or has used drugs or alcohol 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.  Among other things, such facts and inferences may be based upon, but not limited to, the following:
    1. Observable phenomena while at work such as direct observation of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse;
    2. Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance:
    3. A report of substance abuse provided by a reliable and credible source;
    4. Evidence that an individual has tampered with any substance abuse test during his or her employment with the current employer;
    5. Evidence that an individual has caused or contributed to an accident while at work; or
    6. Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer’s premises or while operating the employer’s vehicle, machinery, or equipment.
13. “Rehabilitation program” means an established program capable of providing expert identification, assessment, and resolution of employee drug or alcohol abuse in a confidential and timely service.  This service shall in all cases be provided by persons licensed or appropriately certified as health professionals to provide drug or alcohol rehabilitative services.
    (13.1)  “Self-insured employer” means any employer certified pursuant to Code Section 34-9-127.
14. “Specimen” means tissue, blood, breath, urine, or other product of the human body capable of revealing the presence of drugs or their metabolites or of alcohol.
15. “Substance” means drugs or alcohol.
16. “Substance abuse test” or “test” means any chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolites or of alcohol.
17. “Threshold detection level” means the level at which the presence of a drug or alcohol can be reasonably expected to be detected by an initial and confirmatory test performed by a laboratory meeting the standards specified in this article.  The threshold detection level indicates the level at which a valid conclusion can be drawn that the drug or alcohol is present in the employee’s specimen. 

34-9-412. Insurance premium discount. (Back to Guidelines)

If an employer work organization implements a drug-free workplace program substantially in accordance with subsections (a) and (b) of Code Section 34-9-413, the employer work organization shall qualify for certification for a premium discount under such employer’s workers’ compensation insurance policy as provided in Code Section 33-9-40.2.

34-9-412.1. Certification. (Back to Guidelines)

A self-insured employer or an employer member of a group self-insurance fund who implements a drug-free workplace program substantially in accordance with Code Section 34-9-413 and who complies with all other provisions of this article required of employers in order to qualify for insurance premium discounts shall be certified by the State Board of Workers’ Compensation as having a drug-free workplace program in compliance with this article.

34-9-413. Elements of program; applicable confidentiality standards. (Back to Guidelines)

1. A drug-free workplace program must contain the following elements:
   1. Written policy statement as provided in Code Section 34-9-414;
   2. Substance abuse testing as provided in Code Section 34-9-415;
   3. Resources of employee assistance providers maintained in accordance with Code Section 34-9-416;
   4. Employee education as provided in Code Section 34-9-417; and
   5. Supervisor training in accordance with Code Section 34-9-418.
2. In addition to the requirements of subsection (a) of this Code section, a drug-free workplace program must be implemented in compliance with the confidentiality standards provided in Code Section 34-9-420.
3. A drug-free workplace program may offer and include the optimum level core services as described in subparagraph (C) of paragraph (6) of Code Section 34-9-411. 

34-9-414. Notice of testing; written policy statement. (Back to Guidelines)

1. One time only, prior to testing, all employees and job applicants for employment must be given a notice of testing.  In addition, all employees must be given a written policy statement from the employer which contains:
   1. A general statement of the employer’s policy on employee substance abuse which shall identify:
      1. The types of testing an employee or job applicant maybe required to submit to, including reasonable suspicion or other basis used to determine when such testing will be required; and
      2. The actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result;
   2. A statement advising an employee or job applicant of the existence of this article;
   3. A general statement concerning confidentiality;
   4. The consequences of refusing to submit to a drug test;
   5. A statement advising an employee of the Employee Assistance Program, if the employer offers such program, or advising the employee of the employer’s resource file of assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems;
   6. A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the employer within five working days after written notification of the positive test result; and
   7. A statement informing an employee of the provisions of the federal Drug-Free Workplace Act or Chapter 23 of Title 45, the “Drug-free Public Work Force Act of 1990,” if applicable to the employer.
2. An employer not having a substance abuse testing program in effect on July 1, 1993, shall ensure that at least 60 days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing.  An employer having a substance abuse testing program in place prior to July 1, 1993, shall not be required to provide a 60-day notice period.
3. An employer shall include notice of substance abuse testing on vacancy announcements for those positions for which testing is required.  A notice of the employer’s substance abuse testing policy must also be posted in an appropriate and conspicuous location on the employer’s premises, and copies of the policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer’s personnel office or other suitable locations.

34-9-415. Conduct of testing; types of tests; random testing; procedures for specimen collection and testing; laboratory qualifications, procedures, and reports; confirmation tests. (Back to Guidelines)

1. All testing conducted by an employer shall be in conformity with the standards and procedures established in this article and all applicable rules adopted by the State Board of Workers’ Compensation pursuant to this article.  However, an employer shall not have a legal duty under this article to request an employee or job applicant to undergo testing. 
2. An employer is required to conduct the following types of tests in order to qualify for the workers’ compensation insurance premium discounts provided under Code Section 34-9-412 and Code Section 33-9-40.2:
   1. An employer must require job applicants to submit to a substance abuse test after extending an offer of employment.  Testing at the employer worksite with on-site testing kits that satisfy testing criteria in this article shall be deemed suitable and acceptable post-offer testing.  Limited testing of job applicants by an employer shall qualify under this paragraph if such testing is conducted on the basis of reasonable classifications of job positions;
   2. An employer must require an employee to submit to reasonable suspicion testing;
   3. An employer must require an employee to submit to a substance abuse 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 that is scheduled routinely for all members of an employment classification or group;
   4. If the employee in the course of employment enters an Employee Assistance Program or a rehabilitation program as the result of a positive test, the employer must require the employee to submit to a substance abuse test as a follow-up to such program.  However, if an employee voluntarily entered the program, follow-up testing is not required.  If follow-up testing is conducted, the frequency of such testing shall be at least once a year for a two-year period after completion of the program, and advance notice of the testing date shall not be given to the employee; and
   5. If the employee has caused or contributed to an on-the-job injury which resulted in a loss of work time, the employer must require the employee to submit to a substance abuse test.
3. Nothing in this Code section shall prohibit a private employer from conducting random testing or other lawful testing of employees.
4. All specimen collection and testing under this Code section shall be performed in accordance with the following procedures:
   1. A specimen shall be collected with due regard to the privacy of the individual providing the specimen and in a manner reasonably calculated to prevent substitution or contamination of the specimen;
   2. Specimen collection shall be documented, and the documentation procedures shall include:
      1. Labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; and
      2. An opportunity for the employee or job applicant to record any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information.  The providing of information shall not preclude the administration of the test , but shall be taken into account in interpreting any positive confirmed results:
   3. Specimen collection, storage, and transportation to the testing site shall be performed in a manner which will reasonably preclude specimen contamination or adulteration;
   4. Each initial and confirmation test conducted under this Code section, not including the taking or collecting of a specimen to be tested, shall be conducted by a laboratory as described in subsection (e) of this Code section;
   5. A specimen for a test may be taken or collected by any of the following persons:
      1. A physician, a physician’s assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of any accident for the purpose of rendering emergency medical service or treatment;
      2. A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Human Resources; or
      3. A qualified person certified or employed by a collection company;
   6. Within five working days after receipt of a positive confirmed test result from the laboratory, an employer shall inform an employee or job applicant in writing of such positive test result, the consequences of such results, and the options available to the employee or job applicant;
   7. The employer shall provide to the employee or job applicant, upon request, a copy of the test results;
   8. An initial test having a positive result must be confirmed by a confirmation test conducted in a laboratory in accordance with the requirements of this article;
   9. An employer who performs drug testing or specimen collection shall use chain of custody procedures to ensure proper record keeping, handling, labeling, and identification of all specimens to be tested.  This requirement shall apply to all specimens, including specimens collected using on-site testing kits;
   10. An employer shall pay the cost of all drug tests, initial and confirmation, which the employer requires of employees;
   11. An employee or job applicant shall pay the cost of an additional tests not required by the employer; and
   12. If testing is conducted based on reasonable suspicion, the employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing.  A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the employer pursuant to Code Section 34-9-420 and retained by the employer for at least one year
5. 1. No laboratory may analyze initial or confirmation drug specimens unless:
   1. The laboratory is approved by the National Institute on Drug Abuse or the College of American Pathologists;
   2. The laboratory has written procedures to ensure the chain of custody; and
   3. The laboratory follows proper quality control procedures including, but not limited to:
      1. 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;
      2. An internal review and certification process for drug test results conducted by a person qualified to perform that function in the testing laboratory;
      3. Security measures implemented by the testing laboratory to preclude adulteration of specimens and drug test results; an
      4. Other necessary and proper actions taken to ensure reliable and accurate drug test results.
   2. A laboratory shall disclose to the employer a written test result report within seven working days after receipt of the sample. All laboratory reports of a substance abuse test result shall, at a minimum, state:
      1. The name and address of the laboratory which performed the test and the positive identification of the person tested;
      2. Positive results on confirmation tests only, or negative results, as applicable;
      3. A list of the drugs for which the drug analyses were conducted; and
      4. The type of tests conducted for both initial and confirmation tests and the minimum cut-off levels of the tests.

      No report shall disclose the presence or absence of any drug other than a specific drug and its metabolites listed pursuant to this article.

   3. Laboratories shall provide technical assistance to the employer, employee, or job applicant for the purpose of interpreting any positive confirmed test results which could have been caused by prescription or nonprescription medication taken by the employee or job applicant.
6. If an initial drug test is negative, the employer may in its sole discretion seek a confirmation test.  Only laboratories as described in subsection (e) of this Code section shall conduct confirmation drug tests.
7. All positive initial tests shall be confirmed using the gas chromatography/mass spectrometry (GC/MC) method or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse as such technology becomes available in a cost-effective form.

34-9-416. Employee Assistance Programs. (Back to Guidelines)

1. If an employer has an Employee Assistance Program, the employer must inform the employee of the benefits and services of the Employer Assistance Program.  In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program.
2. If an employer does not have an Employee Assistance Program, the employer must maintain a resource file of providers of other employee assistance including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems and must notify the employee in writing of the availability of this resource file.  In addition, the employer shall post in a conspicuous place a current listing of providers of employee assistance in the area.  Such listing of available providers shall be reviewed and updated by the employer during the month of July of each year at which time the employer shall, when necessary, correct and revise information on all providers listed.  Employers shall take reasonable care to identify appropriate providers and supply accurate telephone and address information on the posted listing of providers at all times.

34-9-417. Education program on substance abuse. (Back to Guidelines)

1. During the initial year of certification as provided in Code Section 34-9-412.1, an employer must provide all employees with a semiannual education program on substance abuse, in general, and its effects on the workplace, specifically.  During the initial year, the first hour of the education program must include but is not limited to the following information:
   1. The explanation of the disease model of addiction for alcohol and drugs;
   2. The effects and dangers of the commonly abused substances in the workplace; and
   3. The company’s policies and procedures regarding substance abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.
2. During the second and any consecutive subsequent years of certification, an employer must provide all employees with an annual education program.

34-9-418. Supervisor training on substance abuse. (Back to Guidelines)

1. During the initial year of certification as provided in Code Section 34-9-412.1 and in addition to the education program provided in Code Section 34-9-417, an employer must provide all supervisory personnel with a minimum of two hours of supervisor training, which must include but is not limited to the following information:
   1. How to recognize signs of employee substance abuse;
   2. How to document and corroborate signs of employee substance abuse; and
   3. How to refer substance abusing employees to the proper treatment providers.
2. During the second and any consecutive subsequent years of certification, an employer must provide all supervisory personnel with a minimum of one hour of such supervisory training.

34-9-419.  Physician-patient relationship not created; authorized work rules; applicability of article; medical screening or other tests authorized; employer not required to establish program. (Back to Guidelines)

1. No physician-patient relationship is created between an employee or job applicant and an employer, medical review officer, or any person performing or evaluating a drug test solely by the establishment, implementation, or administration of a drug-testing program.
2. Nothing in this article shall be construed to 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.
3. Nothing in this article shall be construed to operate retroactively, and nothing in this article shall abrogate the right of an employer under state or federal law to conduct drug tests, or implement employee drug-testing programs; provided, however, only those programs that meet the criteria outlined in this article qualify for reduced workers’ compensation insurance premiums under Code Section 33-9-40.2
4. Nothing in this article shall be construed to prohibit an employer from conducting medical screening or other tests required, permitted, or not disallowed by any statute, rule, or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy materials in the workplace or in the performance of job responsibilities.  Such screening or tests shall be limited to the specific materials expressly identified in the statute, rule or regulation, unless prior written consent of the employee is obtained for other tests.
5. No cause of action shall arise in favor of any person based upon the failure of an employer to establish or conduct a program or policy for substance abuse testing.

34-9-420. Confidentiality of information. (Back to Guidelines)

1. All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence, obtained in discovery, or disclosed in any civil or administrative proceeding, except as provided in subsection (d) of this Code section.
2. Employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs, and their agents who receive or have access to information concerning test results shall keep all information confidential.  Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, unless such release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding.  The consent form must contain at a minimum:
   1. The name of the person who is authorized to obtain the information;
   2. The purpose of the disclosure;
   3. The precise information to be disclosed;
   4. The duration of the consent; and
   5. The signature of the person authorizing release of the information.
3. Information on tests results shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this subsection shall be inadmissible as evidence in any such criminal proceeding.
4. Nothing contained in this article shall be construed to prohibit the employer or laboratory conducting a test from having access to employee test information when consulting with legal counsel when the information is relevant to its defense in a civil or administrative matter.

34-9-421. Rules and regulations. (Back to Guidelines)

The State Board of Workers’ Compensation shall promulgate by rule or regulation procedures and forms for the certification of employers who establish and maintain a drug-free workplace which complies with the provisions of this article.  The board shall be authorized to charge a fee for the certification of a drug-free workplace program in an amount which shall approximate the administrative costs to the board of such certification.  Certification of an employer shall be required for each year in which a premium discount is granted.  The State Board of Workers’ Compensation shall be authorized to promulgate rules and regulations necessary for the implementation of this article.