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Drug Free Workplace Program

The Tennessee Drug Free Workplace Program is designed to increase productivity for Tennessee employers and promote safe worksites for employees by promoting drug- and alcohol-free workplaces.  Worksites where workers are not impaired by drugs and alcohol are safer worksites and can operate in an enhanced competitive position that is free from the costs, delays and tragedies that accompany workplace accidents resulting from substance abuse related injuries.  Employers are not required to join; and if the reasons named above are not reason enough, there are several other reasons explained below that an employer should contemplate when considering participation.

View the Drug Free Workplace Program Rules.

The Problems

  • 60% of the world's production of illegal drugs is consumed in the U.S.
  • Nearly 70% of current users of illegal drugs are employed.
  • Nearly 1 in 4 employed Americans between the ages of 18 - 35 have illegally used drugs.
  • 1/3 of employees know of the illegal sale of drugs in their workplace.
  • 20% of young workers admit using marijuana on the job.

* Source: 'Working Partners', National Conference Proceedings Report: sponsored by U.S. Dept. of Labor, the SBA, and the Office of National Drug Control Policy.

The Costs

Even though many employers choose to ignore the problem, substance abuse in the workplace has a real impact on their bottom line. Substance abuse drains more than $100 Billion from American businesses every year in ...

  • WORKERS' COMPENSATION CLAIMS: 38% to 50% of all Workers' Compensation claims are related to substance abuse in the workplace; substance abusers file three to five times as many Worker's Compensation claims.
  • MEDICAL COSTS: Substance abusers incur 300% higher medical costs than non-abusers.
  • ABSENTEEISM: Substance abusers are 2.5 times more likely to be absent eight or more days a year.
  • LOST PRODUCTIVITY: Substance abusers are 1/3 less productive.
  • EMPLOYEE TURNOVER: It costs a business an average of $7,000 to replace a salaried worker.

* Source: 'Working Partners', National Conference Proceedings Report: sponsored by U.S. Dept. of Labor, the SBA, and the Office of National Drug Control Policy.

The Solution: A Drug Free Workplace Program

Companies who have a Drug Free Workplace Program will find that an investment in education, prevention, and assistance programs pays dividends for both the employer and the employee.   

The Benefits of joining the Tennessee Drug Free Workplace Program

An employer certified by the Tennessee Drug Free Workplace Program to be Tennessee Drug Free participant is entitled to:

  • A 5% premium credit on its workers' compensation insurance policy.
  • A shift in the burden of proof in workers’ compensation claims involving a positive alcohol or drug test. If an employee is injured at work and later fails a post-accident drug/alcohol test, it is presumed that the drugs or alcohol were the proximate cause of the injury.  Workers’ Compensation benefits can be denied until the injured employee overcomes that presumption.
    • Legislation was passed in 2011 that increased the standard of proof required by an injured worker to overcome the presumption from a preponderance of evidence to clear and convincing evidence.  This change makes it even more difficult for employees impaired by alcohol or other drugs, while at work, to qualify for workers’ compensation benefits.
  • The presumption that the discharge or discipline of an employee, or the refusal to hire a job applicant, who is found to be in violation of the employer’s drug-free workplace program will be considered done for cause.  This will likely disqualify employees from receiving unemployment benefits.

Requirements to join

Employers participating in Tennessee’s Drug Free Workplace Program are required to:

  • Renew their application each year at the same time that they renew their workers’ compensation insurance policy;
  • Administer the following five types of tests:
    • Pre-employment (must test for drugs, may test for alcohol) after a conditional offer of employment
    • Post-accident that resulted in an injury—in emergency situations employees injured and required to be tested must be taken to a medical facility for immediate treatment of the injury.  Specimens cannot be taken prior to administering emergency care.  In non-emergency situations the injured employee must submit to the test at the time the injury is entered into the employer’s OSHA 300 log.
    • Reasonable suspicion—employer must detail in writing, within seven (7) calendar days, the circumstances that formed the determination to test and provide a copy of this detail to the employee upon request
    • Fitness-for-duty (for safety-sensitive positions)—where required by law; are part of the employer’s policy; or is routinely scheduled for all members of the employment classification group;
    • Follow-up testing of employees that enter an EAP program for drug/alcohol-related reasons—not required if employee voluntarily entered program; if required it must be conducted at least once a year for two consecutive years; employee cannot be given advance notice of the date of the follow-up test

Employers are allowed, but not required, to do random testing

  • Testing facilities must be licensed and approved by the TN Department of Health or the US Dept. of Health and Human Services (HHS), College of American Pathologists, or other recognized authority authorized by the Commissioner.  The lab must comply with the procedures established by the federal DOT.  Labs that perform confirmation tests must also be certified by either the Substance Abuse or Mental Health Services Administration (SAMSHA) or by the College of American Pathologists—Forensic Urine Testing Programs (CAP-FUDT)

When an employee/applicant is drug tested, is the employer required to utilize testing lab that employs a Medical Review Officer (MRO)?

Yes.  As defined in the Rules and Guidelines, "Medical Review Officer" or "MRO" means a licensed physician, employed with or contracted with a covered employer, who has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information. The MRO should be used to review all positive tests with the employee or applicant before the employer is advised of the test results. Using an MRO provides the employer with a medically qualified interpretation of a positive test result, which would be defensible in a court of law. The MRO helps to protect both the employer and the employee.

How accurate are the drug testing methods that I will be required to use?

If testing is done in accordance with the Rules and Guidelines, ( Chapter 0800-2 ), the results are highly accurate and reliable. Sometimes, you'll hear that urine drug tests can be "beaten".  This was true in the past.  People could add water, soap, ammonia, vinegar or even table salt to a specimen and produce a negative test result.

Today, collection site and laboratory procedures make tampering nearly impossible. At the collection site, employees must leave coats, purses and briefcases outside the cubicle where they provide the specimen. The person collecting the specimen adds a bluing agent to the toilet bowl and remains in the area directly outside the stall while the specimen is being given. Immediately afterward, the collector applies a temperature strip to the specimen to make sure that it matches body temperature. The collector also checks the specimen for unusual color and odor. Later, when the specimen arrives at the laboratory, technicians perform simple tests for gravity and acidity to detect adulterated specimens.

Another misconception is that drug testing is prone to inaccuracy with so-called "false" positives. Several years ago, some over-the-counter drugs such as ibuprofen or diet pills could cause false positives for illicit drugs. Today, tests have been refined to the point where this does not occur. A more legitimate concern is that of true "false" positives. That is, where the laboratory accurately determined the presence of a drug, but its presence is not the result of abuse or illicit use. Certain foods and medicines do contain detectable amounts of "controlled" drugs. For example, poppy seeds used in bagels and other baked goods can sometimes contain enough morphine to produce a detectable level in urine.

Over-the-counter drugs that are sold in countries outside the U.S. often contain codeine. Codeine is also found in commonly-prescribed cough and cold medicines, such as Tylenol with codeine, and can produce a positive result in drug tests. In all these cases, a Medical Review Officer ( MRO ) is able to determine if the drug is being properly and legitimately used.

While there have been some reports of errors, they can usually be traced to the fact that a confirmation test was not performed to verify an initial positive result.

Could there be legal challenges?

Yes. The United States Constitution, which restricts governmental but not private actors from arbitrarily interfering with individual rights, prohibits the Government from unreasonably infringing on workers' rights relating to privacy and job security. With respect to workplace privacy, the Fourth Amendment to the U.S. Constitution prohibits unreasonable "searches." In l989, the Supreme Court, considering the issue of workplace drug testing for the first time, concluded that a public employer taking of blood, urine, or breath specimen for the purpose of alcohol and other drug testing, (or testing conducted by a private employer at the request of the Government), constitutes a search under the Fourth Amendment because it implicates significant privacy concerns. The Court further held that the determination of whether such testing is "reasonable" and therefore constitutionally valid, requires a balancing of the degree of invasion on the individual's privacy interest against the promotion of the employer's legitimate interests.

In short, employment decisions based on a substance abuse test result can be contested. The Courts favor employee testing that is based on procedures that are clear, fair, consistent, and communicated in a written policy statement.