Section 0800-02-12-.02 - POLICIES(1) A covered employer may establish reasonable work rules related to employee possession, use, sale, or solicitation of drugs or alcohol, including convictions for drug or alcohol-related offenses, and may take action based upon the covered employer's policies and rules.(2) The covered employer shall pay the cost of all testing which it requires of employees and job applicants.(3) Employers who implement a drug-free workplace program pursuant to these rules are entitled to the following benefits:(a) Premium Discounts under T.C.A. Section 50-6-418 - An Employer will begin to accrue a premium discount on a pro rata basis as of the date of certification (the date of receipt by the Tennessee Bureau of Workers' Compensation). The covered employer's workers' compensation insurance company must apply to such policy the premium credit granted under this program or make payment for such credit effective after the annual final premium audit has been completed. In order to continue to receive the premium discount, an employer must renew annually the application for the Tennessee Drug-Free Workplace and be certified by the Tennessee Bureau of Workers' Compensation.(b) A shift in the burden of proof pursuant to T.C.A. Section 50-6-110(c).(c) A covered employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with these rules and T.C.A. Section 50-9-108 is considered to have discharged, disciplined, or refused to hire for cause.(4) The procedures for laboratory reporting, and MRO review, and reporting of specimen test results shall be in accordance with those described in 49 C.F.R., Part 40. The MRO shall follow the SAMHSA MRO Manual.(5) All drug and alcohol tests under these rules shall be limited to the specific substances expressly identified on the bureau's website, unless prior written consent of the employee is obtained for other tests.(6) Testing conducted pursuant to the requirements of any federal statute or regulation shall be deemed to be in conformity with these rules.(7) If an employee or job applicant has a positive confirmed post-accident drug test for a drug listed on the bureau's website, an employee/job applicant may lose his/her entitlement to workers' compensation benefits; provided, that the drug test was conducted according to these rules and guidelines. A rebuttable presumption is created that the drug or alcohol was the proximate cause of the injury. Such employee may be disciplined for violation of these rules, up to and including termination, and may forfeit his or her eligibility for any and all workers' compensation benefits.(8) A covered employer may not discharge, discipline, refuse to hire, discriminate against or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a Medical Review Officer.(9) Nothing in these rules shall prohibit an employer from conducting medical surveillance testing for exposure of employees to potential toxic substances in the workplace.(10) Nothing in these rules shall authorize any employer to test any employee or applicant for alcohol or drugs in any manner inconsistent with any constitutional or statutory requirements, including those imposed by the Americans with Disabilities Act and the National Labor Relations Act.(11) Nothing in these rules shall prohibit law-enforcement personnel from conducting drug or alcohol testing performed in accordance with applicable statutory or case law. If drug or alcohol testing should have been performed under these rules, but was not performed, the employer may consider testing results obtained by law enforcement personnel in lieu of testing under these rules.(12) A Medical Review Officer interpreting drug or alcohol testing pursuant to these rules does not have a physician-patient relationship with the tested employee or job applicant.(13) Any covered employer who has employees who are healthcare practitioners shall report a healthcare practitioner who tests positive for any drug on any government or private sector pre-employment or employer-ordered confirmed drug test, or who refuses to submit to a drug test, to the Department of Health and the practitioner's licensing or certifying board as required by T.C.A. Title 63, Chapter 1, Part 1. Regardless of the MRO report, or an Employer's subsequent action, the Employer shall report to the appropriate licensing board the confirmed positive drug test as required by T.C.A. Section 50-9-115. Employers are encouraged to share the MRO conclusion with the Department of Health and the practitioner's licensing or certifying board.Tenn. Comp. R. & Regs. 0800-02-12-.02
Original rule filed January 26, 1998; effective April 11, 1998. Amendment filed September 15, 2008; effective January 28, 2009. Amendments to rule filed February 5, 2018; effective 5/6/2018.Authority: T.C.A. §§ 4-5-202, 50-9-101, 50-9-104, 50-9-108, and 50-9-111.