Rule
26
CONFERENCES WITH LEGAL ADVISOR
Pursuant to Ark. Code Ann. §
11-9-703
(1996 Repl.), and legislative mandate, the Legal Advisor Division is directed
to set and to conduct preliminary conferences, called Mediation Conferences,
with the goal of mediating disputed issues between claimants and respondents. A
Mediation Conference shall be held in all cases in which the amount in dispute
is two thousand five hundred dollars ($2,500) or less.
I. Upon written request by either party for a
formal hearing, the mediator shall determine whether the dispute between the
parties exceeds an amount of two thousand five hundred dollars ($2,500). If the
mediator determines it does not, a Mediation Conference Order shall be issued
scheduling a Mediation Conference within 30 days of the date of said
determination.
II. The Mediation
Conference shall be informal, nonbinding, and strictly confidential. The
mediator is authorized to compel attendance at the conference, but is not
authorized to compel settlement. The mediator is not authorized to disclose any
conference proceedings or communications.
III. Attendance by the parties, and/or a
representative of each party having full authority to settle all issues, is
required. Sanctions may be imposed upon any party wilfully failing to attend a
Mediation Conference without good cause. Sanctions may include dismissal,
default, and/or fines as provided in Ark. Code Ann. §
11-9-706
(1996 Repl.).
IV. Mediation
Conferences may be conducted by telephone conference call or in person, in the
county where the accident occurred, (if the accident occurred in Arkansas)
unless otherwise agreed to by the parties, or otherwise directed by the
Commission.
V. Following the
conference, the Report of Mediation Conference (Form R) shall be
placed in the file and copies sent to the parties. The file shall then be
returned to the Clerk of the Commission for further disposition prior to being
returned to open general files.
VI.
The Mediation Conferences shall be conducted according to policies and
procedures approved and published by the Arkansas Workers' Compensation
Commission.
VII. If All parties
agree to voluntary mediation, the Arkansas Workers' Compensation Commission
will provide mediation services regardless of the amount in dispute. (Approved
September 9, 1997, effective January 1, 1998; amended September 20, 2001.)
Rule 36
A
VOLUNTARY PROGRAM FOR DRUG-FREE WORKPLACES
I.
PURPOSE AND SCOPE
Ark. Code Ann. §
11-14-101
A. Purpose. The
purpose of this rule is to promote voluntary drug-free workplaces in accordance
with Act 1552 of 1999, in order that employers in this state may 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 drug or alcohol abuse by employees. It is
also the purpose of this rule that drug and alcohol abuse be discouraged and
that employees who choose to engage in drug or alcohol abuse face the risk of
unemployment and being precluded from receiving workers' compensation medical
and indemnity benefits .
Ark. Code Ann. §
11-14-101
B. If an employer
implements a drug-free workplace program which includes;
1. Notice,
2. Education, and
3. Procedural requirements for testing for
drugs and alcohol, in accordance with this rule, then the covered employer may
require the employee or job applicant to submit to a test for the presence of
drugs or alcohol.
Ark. Code Ann. §
11-14-101
C. If a drug or
alcohol is found to be present in the employee's system at a level prescribed
by this rule, or if an employee refuses to submit to a test for dugs or
alcohol, the employee may be terminated and be precluded from receiving
workers' compensation medical and indemnity benefits.
Ark. Code Ann. §
11-14-101
D. If a drug or
alcohol is found to be present in the job applicant's system at a level
prescribed by this rule, or if a job applicant refuses to submit to a test for
drugs or alcohol, the covered employer may refuse to hire the job
applicant.
E. Employers who adopt a
drug-free workplace program as prescribed herein, and are annually accepted by
the Division as having such a program, shall qualify for a workers'
compensation premium credit as described in Section
XV of this rule.
Ark. Code Ann. §
11-14-103
F. Scope: The
provisions of this rule apply to all employers in the State of Arkansas subject
to provisions of the workers' compensation laws who qualify for the drug-free
workplace program.
G. The
application of the provisions of this rule is subject to the provisions of any
applicable collective bargaining agreement.
II.
POLICIES
Ark. Code Ann. §
11-14-104
A. It is intended that
any employer required to test its employees pursuant to the requirements of any
federal statute or regulation shall be deemed to be in conformity with this
section as to the employees it is required to test by those standards and
procedures designated in that federal statute or regulation. All other
employees of such employer shall be subject to testing as provided in this rule
in order for such employer to qualify as having a drug-free
workplace.
Ark. Code Ann. §
11-14-103
B. Nothing in this
rule is intended to authorize any employer to test any applicant or employee
for alcohol or drugs in any manner inconsistent with federal constitutional or
statutory requirements, including those imposed by the Americans with
Disabilities Act and the National Labor Relations Act.
C. Nothing in this rule shall be construed to
require an employer to test, or create a legal obligation upon an employer to
request an employee or job applicant to undergo drug or alcohol
testing.
D. Nothing in this rule
shall be construed to prohibit an employer from affording an employee greater
protection than provided herein.
E.
A covered employer is not barred from conducting more extensive testing
(including random testing) provided the employee/job applicant's constitutional
rights are not infringed.
Ark. Code Ann. §
11-14-108
F. No cause of action
shall arise in favor of any person based upon the failure of an employer to
establish a program or policy for drug or alcohol testing.
G. Nothing in this rule shall be construed to
amend or affect the employement-at-will doctrine.
III.
DEFINITIONS
Ark. Code Ann. §
11-14-102
A. "Alcohol" as used
in this rule shall have the same meaning as in the federal regulations
describing procedures for the testing of alcohol by programs operating pursuant
to the authority of the United States Department of Transportation as currently
compiled at 49 Code of Federal Regulations (C.F.R.) Part
40.
Ark. Code Ann. §
11-14-102
B. "Alcohol test"
means an analysis of breath or blood, or any other analysis which determines
the presence and level or absence of alcohol as authorized by the United States
Department of Transportation in its rules and guidelines concerning alcohol
testing and drug testing.
Ark. Code Ann. §
11-14-110
C. "Certified
laboratory" means a laboratory licensed and approved as outlined in this rule
(Section VII ).
Ark. Code Ann. §
11-14-102
D. "Chain of Custody"
refers to the methodology of tracking specified materials or substances for the
purpose of maintaining control and accountability from initial collection to
final disposition for all such materials or substances, and providing for
accountability at each stage in handling, testing, and storing specimens and
reporting test results.
Ark. Code Ann. §
11-14-102
E. "Confirmation
test", "confirmed test", or "confirmed drug or alcohol test" means a second
analytical procedure used to identify the presence of a specific drug or
alcohol or metabolite in a specimen, which test must be different in scientific
principle from that of the initial test procedure and must be capable of
providing requisite specificity, sensitivity, and quantitative
accuracy.
Ark. Code Ann. §
11-14-102
F. "Covered employer"
means a person or entity that employs a person, is covered by the workers'
compensation laws and maintains a drug-free workplace pursuant to this rule.
This rule shall have no effect on employers who do not meet this
definition.
Ark. Code Ann. §
11-14-102
G. "Director" means
the director of the Health and Safety Division of the Workers' Compensation
Commission.
Ark. Code Ann. §
11-14-102
H. "Division" means
the Health and Safety Division of the Workers' Compensation
Commission.
Ark. Code Ann. §
11-14-102
I. "Drug" means any
controlled substance subject to testing pursuant to drug testing regulations
adopted by the United States Department of Transportation. A covered employer
shall test an individual for all such drugs in accordance with the provisions
of this rule.
Ark. Code Ann. §
11-14-102
J. "Drug or Alcohol
Rehabilitation Program" means a service provider that provides confidential,
timely, and expert identification, assessment and resolution of employee drug
or alcohol abuse.
Ark. Code Ann. §
11-14-102
K. "Drug test" or
"test" means any chemical, biological, or physical instrumental analysis
administered by a certified laboratory for the purpose of determining the
presence or absence of a drug or its metabolites or alcohol pursuant to
regulations governing drug or alcohol testing adopted by the United States
Department of Transportation.
Ark. Code Ann. §
11-14-102
L. "Employee" means
any person who works for a salary, wage, or other remuneration for a covered
employer, and shall include individuals who are temporary or leased employees
as defined herein.
Ark. Code Ann. §
11-14-102
M. "Employee
Assistance Program" means an established program capable of providing:
1. Expert assessment of employee personal
concerns;
2. Confidential and
timely identification services with regard to employee drug or alcohol
abuse;
3. Referrals of employees
for appropriate diagnosis, treatment and assistance; and
4. Follow-up services for employees who
participate in the program or require monitoring after returning to work.
If, in addition to the above activities, an employee assistance
program provides diagnostic and treatment services, these services shall in all
cases be provided by the program.
Ark. Code Ann. §
11-14-102
N. "Employer" means a
person or entity that employs a person and is covered by the workers'
compensation laws.
O. "First aid
treatment" means treatment as defined by 29 CFR 1904.12(d).
Ark. Code Ann. §
11-14-102
P. "Initial drug or
alcohol test" means a procedure that qualifies as a "screening test" or
"initial test" pursuant to regulations governing drug or alcohol testing
adopted by the United States Department of Transportation.
Q. "Injury" means any work-related accident
requiring more than first-aid treatment.
Ark. Code Ann. §
11-14-102
R. "Job Applicant"
means a person who has applied for a position with a covered employer and has
been offered employment conditioned upon successfully passing a drug or alcohol
test, and may have begun work pending the results of the drug or alcohol
test.
Ark. Code Ann. §
11-14-102
S. "Medical Review
Officer" or "MRO" means a licensed physician, pharmacist, pharmacologist or
similarly qualified individual, 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.
T. "Presence of drugs or alcohol" means
levels of drugs, alcohol or metabolites in the body at or above the cutoff
levels established by Department of Transportation (DOT) as published in 49 CFR
Part 40 or elsewhere.
Ark. Code Ann. §
11-14-102
U. "Reasonable
Suspicion Drug Testing" means drug or alcohol testing based on a belief that an
employee is using or has used drugs or alcohol in violation of the covered
employer's policy drawn from specific objective and articulable facts and
reasonable inferences drawn from those facts in light of experience.
Ark. Code Ann. §
11-14-102
V. "Safety-Sensitive
Position" means a position involving a safety-sensitive function pursuant to
regulations governing drug and alcohol testing adopted by the United States
Department of Transportation. "Safety-sensitive position" means, with respect
to any employer, a position in which a drug or alcohol impairment constitutes
an immediate and direct threat to public health or safety, such as a position
that requires the employee to carry a firearm, perform life-threatening
procedures, work with confidential information or documents pertaining to
criminal investigations or work with controlled substances, or a position in
which momentary lapse in attention could result in injury or death to another
person.
Ark. Code Ann. §
11-14-102
W. "Specimen" means
tissue, fluid, or a product of the human body capable of revealing the presence
of alcohol, drugs or their metabolites.
X. "Temporary Employee", "Leased Employee"
and "Employee Leasing Firm" means the same as defined in Ark. Code Ann. §
23-92-302.
Y. "49 CFR Part
40 " means the most current
version of 49 CFR Part
40.
IV.
WRITTEN POLICY STATEMENT: NOTICE TO
JOB APPLICANTS AND EMPLOYEES
Ark. Code Ann. §
11-14-105;
101-14-101
A. It is a
requirement of the drug-free workplace program that, prior to testing, the
employer give a one-time written policy statement to all employees and job
applicants. A model notice and policy may be obtained from the Division. This
model notice and policy may be modified by the employer. However, any such
notice must contain:
1. A general statement of
the covered employer's policy on employee drug and alcohol abuse, which must
identify:
a. That it is a condition of
employment for an employee to refrain from reporting to work or working with
the presence of drugs or alcohol in the employee's body;
b. The types of drug or alcohol testing an
employee or job applicant may be required to submit to; and
c. The actions the covered employer may take
against an employee or job applicant on the basis of a positive, confirmed,
verified drug or alcohol test result;
2. A statement advising the employee or job
applicant of the existence of this rule;
3. A statement explaining the protections
available to employees under this rule as outlined in Section
IX;
4. A general statement concerning
confidentiality;
5. The
consequences of refusing to submit to a drug or alcohol test;
6. A representative sampling of names,
addresses, and telephone numbers of employee assistance programs and/or local
drug and alcohol rehabilitation programs;
7. A statement informing the employee or job
applicant of his responsibility to notify the laboratory of any administrative
or civil action brought pursuant to this rule;
8. A list of all classes of drugs for which
the covered employer may test;
9. A
statement regarding any applicable collective bargaining agreement or contract
and the right to appeal to the applicable court;
10. That this notice complies with the
requirements for notice under Section
I.
Ark. Code Ann. §
11-14-105
B. A covered employer
shall ensure that at least sixty (60) days elapse between a general one-time
notice to all employees that a drug-free workplace program is being implemented
and the effective date of the program.
Ark. Code Ann. §
11-14-105
C. A covered employer
shall include notice of drug and/or alcohol testing on vacancy announcements
for positions for which drug and/or alcohol testing is required. A notice of
the covered employer's drug and alcohol testing policy must also be posted in
an appropriate and conspicuous location on the covered employer's premises, and
copies of the policy must be made available for inspection by the employees or
job applicants of the covered employer during regular business hours in the
covered employer's personnel office or other suitable locations.
Ark. Code Ann. §
11-14-105
D. A covered employer
may rescind its coverage under this rule by posting a written and dated notice
in an appropriate and conspicuous location on its premises.
1. The notice shall state that the policy
will no longer be conducted pursuant to this rule;
2. The employer shall provide sixty (60) days
written notice of the rescission to the employer's workers' compensation
insurer and the Division. Such notice shall be sent by certified
mail;
3. The rescission shall
become effective no earlier than sixty (60) days after the date of the posted
notice.
V.
TYPES OF TESTING
Ark. Code Ann. §
11-14-106
A. This rule does not
preclude an employer from conducting any lawful testing, including random
testing, of employees for drugs or alcohol that is in addition to the minimum
testing required under this rule.
Ark. Code Ann. §
11-14-104
B. An employee who is
not in a safety-sensitive position may be tested for alcohol only when the test
is based upon reasonable suspicion.
Ark. Code Ann. §
11-14-104
C. An employee in a
safety-sensitive position may be tested for alcohol use at any occasion as
described in this section.
Ark. Code Ann. §
11-14-106
D. To the extent
permitted by law, a covered employer who voluntarily establishes a drug-free
workplace is required to conduct the following types of drug and alcohol tests.
1. Job applicant drug and/or alcohol testing:
After a conditional offer of employment, a covered
employer:
a. Must require job
applicants to submit to a drug test and may use a refusal to submit to a drug
test or a positive, confirmed, verified drug test as a basis for refusing to
hire a job applicant;
b. May
conduct limited testing of applicants, but only if it is based on a reasonable
classification basis, in accordance with this rule;
c. May, but is not required to, test job
applicants for alcohol;
d. May test
an employee for any drug as set out in Section
VII and at any time set out in
Section V of this rule;
e. Shall limit such testing for public
employees to the extent permitted by the Arkansas and federal
constitutions.
Ark. Code Ann. §
11-14-106;
11-14-102
2. Reasonable
suspicion drug or alcohol testing:
A covered employer must require an employee to submit to
reasonable suspicion drug or alcohol testing.
a. Specimen collection for reasonable
suspicion testing must be done within a reasonable time after the precipitating
incident; for alcohol, it must be done within eight (8) hours of the incident
and, for drugs, it must be done within thirty-two (32) hours of the
incident;
b. Among other things,
reasonable suspicion shall include such facts and inferences as may be based
upon:
(1) Observable phenomena while at work,
such as direct observation of drug or alcohol use or of the physical symptoms
or manifestations of being under the influence of a drug or alcohol;
(2) Abnormal conduct or erratic behavior
while at work, or a significant deterioration in work performance;
(3) A report of drug or alcohol use, provided
by a reliable and credible source;
(4) Evidence that an individual has tampered
with a drug or alcohol test during employment with the current covered
employer;
(5) Information that an
employee has caused, contributed to or been involved in an accident while at
work; or
(6) Evidence that an
employee has used, possessed, sold, solicited or transferred drugs or used
alcohol while working or while on the covered employer's premises or while
operating the covered employer's vehicle, machinery or equipment.
Ark. Code Ann. §
11-14-106
c. Within twenty-four
(24) hours of the observed behavior or before the results of the test are
released, whichever is earlier, the covered employer must make a written record
of the observations leading to a controlled substance or alcohol reasonable
suspicion test. A copy of this documentation shall be given to the employee
upon request, and the original documentation shall be kept confidential by the
covered employer pursuant to Section
XII and shall be retained by the
covered employer for at least one (1) year.
Ark. Code Ann. §
11-14-106
3. Routine
fitness-for-duty drug or alcohol testing.
a. A
covered employer must require an employee to submit to a drug or alcohol test
if, as a part of the employer's written policy, the test is conducted as a
routine part of a routinely scheduled employee fitness-for-duty medical
examination, or is scheduled routinely for all members of an employment
classification or group.
b. A
public employer may require scheduled, periodic testing only of employees who:
(1) Are police or peace officers;
(2) Have drug interdiction
responsibilities;
(3) Are
authorized to carry firearms;
(4)
Are engaged in activities which directly affect the safety of others;
(5) Work in direct contact with inmates in
the custody of the Department of Correction; or
(6) Work in direct contact with minors who
have been adjudicated delinquent or who are in need of supervision in the
custody of the Department of Human Services.
Ark. Code Ann. §
11-14-106
c. This rule does not
require a drug or alcohol test if a covered employer's current personnel policy
on July 1, 2000, does not include drug or alcohol testing as part of a routine
fitness-for-duty medical exam. If such testing is included, it must be done on
a nondiscriminatory manner.
d.
Routine fitness-for-duty drug or alcohol testing of employees does not apply to
volunteer employee health screenings, employee wellness programs, programs
mandated by governmental agencies, or medical surveillance procedures that
involve limited examinations targeted to a particular body part or
function.
Ark. Code Ann. §
11-14-106
4. Follow-up drug
testing. If the employee in the course of employment enters an employee
assistance program for drug or alcohol-related problems, or a drug or alcohol
rehabilitation program, the covered employer must require the employee to
submit to a drug or alcohol test, as appropriate, as a follow-up to such
program, unless the employee voluntarily entered the program. In those cases,
the covered employer has the option to not require follow-up testing. If
follow-up testing is required, it must be conducted at least once a year for a
two-year period after successful completion of the program. Advance notice of a
follow-up testing date must not be given to the employee to be
tested.
Ark. Code Ann. §
11-14-106
5. Post-accident
testing. After an accident which results in an injury, the covered employer
shall require the employee to submit to a drug or alcohol test in accordance
with this rule. Post accident specimen collection for alcohol testing shall be
done within eight (8) hours of the accident. Post accident specimen collection
for drugs shall be done within thirty-two (32) hours of the
accident.
VI.
REFUSAL TO TEST
Ark. Code Ann. §
11-14-108
If an employee or job applicant refuses to submit to a drug or
alcohol test, the covered employer is not barred from discharging or
disciplining the employee or from refusing to hire the job applicant. However,
this section does not abrogate the rights and remedies of the employee or job
applicant as otherwise provided in this rule.
VII.
TESTING PROCEDURES AND LABORATORY
REQUIREMENTS
Ark. Code Ann. §
11-14-107
A. Pursuant to 49 CFR
Part
40, a covered employer shall test
as specified in this rule for:
1.
Amphetamines;
2. Marijuana
(cannabinoids);
3. Cocaine
(benzolylecgonine);
4. Opiates
(codeine, morphine, heroin);
5. PCP
(phencyclidine); and
6.
Alcohol.
B. The cutoffs
established by the United States Department of Transportation and published in
49 CFR Part
40 or elsewhere shall be used for
determination of presumptively positive tests and confirmation test.
C. The following shall be performed in
accordance with the procedures provided for by the United States Department of
Transportation rules for workplace drug and alcohol testing compiled at 49 CFR,
Part
40, Subpart B and Subpart C for
drugs and alcohol, respectively:
1.
Split-sample method of collection;
2. Security of the collection site;
3. Privacy of the individual;
4. Collection control;
5. Chain of custody procedures, which include
integrity, identity and retention of the specimen;
6. Transportation of the specimen;
7. Testing; and
8. Reporting.
D. Except for Sub-Section
VII (E.) (of this rule) and
Sub-Section
IX (B.) (of this rule), the
procedures for laboratory reporting and medical review officer and reporting of
specimen test results shall be in accordance with those described in 49 CFR,
Parts 40.29 and 40.33.
E. Any
specimens with evidence of dilution, contamination, tampering, or any question
normally requiring a medical review officer opinion shall be reported to the
medical review officer for disposition. The medical review officer may
determine the need to re-test, re-collect, order more extensive testing, or
otherwise modify the collection or testing procedure to ensure adequate and
appropriate testing.
Ark. Code Ann. §
11-14-110
F. A laboratory may
not analyze initial test specimens unless:
1.
The laboratory is licensed and approved by the Arkansas Department of Health,
using criteria established by the United States Department of Health and Human
Services as guidelines for modeling the state drug free testing program
pursuant to this section, or the laboratory is certified by the United States
Department of Health and Human Services or the College of American
Pathologists; and
2. The laboratory
complies with the procedures established by the United States Department of
Transportation for a workplace drug test program or such other recognized
authority approved by the Director.
Ark. Code Ann. §
11-14-110
G. Confirmation tests
may only be conducted by a laboratory that meets the requirements of subsection
(F) and is certified by either the Substance Abuse and Mental Health Services
Administration or the College of American Pathologists forensic urine testing
programs.
H. The Arkansas
Department of Health may license and approve any new laboratory to analyze
initial or confirmation test specimens under the provisions of this rule and
may charge a fee, not to exceed two thousand dollars ($2,000), for the license
and approval of the new laboratory The fees set forth in this section shall be
cash funds of the Arkansas Department of Health and shall be deposited as
provided in Ark. Code Ann. §
19-4-801
through §
19-4-816.
VIII.
COSTOF TESTING
Ark. Code Ann. §
11-14-107
A covered employer shall pay the cost of all drug and alcohol
tests, initial and confirmation, which the covered employer requires of
employees. An employee or job applicant shall pay the costs of any additional
drug or alcohol tests not required by the covered employer.
IX.
EMPLOYEE PROTECTION
Ark. Code Ann. §
11-14-105
A. The employer shall
provide procedures for the employee or job applicant to confidentially report
to the medical review officer the use of prescription or nonprescription
medications after being tested, but only if the testing process has revealed a
positive result for the presence of drugs or alcohol.
Ark. Code Ann. §
11-14-105
B. An employee or job
applicant who receives a positive confirmed test result may contest or explain
the result to the medical review officer within five (5) working days after
receiving written notification of the test result. If an employee's or job
applicant's explanation or challenge is unsatisfactory to the medical review
officer, the medical review officer shall then report the positive test result
to the covered employer. An employee may then contest the drug test result
pursuant to Sub-Section
IX (F.) of this rule.
Ark. Code Ann. §
11-14-105
C. Employees and job
applicants must be given a reasonable opportunity to consult with a medical
review officer for technical information regarding prescription and
nonprescription medicine.
1 Ark. Code Ann. §
1-14-107
D.
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 confirmed and
verified by a medical review officer.
Ark. Code Ann. §
11-14-107
E. A covered employer
shall not discharge, discipline or discriminate against an employee solely upon
the employee's voluntarily seeking treatment, while under the employ of the
covered employer, for a drug-related or alcohol-related problem if the employee
has not previously tested positive for drug or alcohol use, entered an employee
assistance program for drug-related or alcohol-related problems or entered a
drug or alcohol rehabilitation program. A covered employer may select the
employee assistance program or drug or alcohol rehabilitation program if the
covered employer pays the cost of the employee's participation in the program.
However, nothing in this rule is intended to require any employer to permit or
provide such a rehabilitation program.
Ark. Code Ann. §
11-14-101
F. Within 30 days of
termination, an employee shall be entitled to contest the test results before
the Arkansas Department of Labor by filing written notice with the Arkansas
Department of Labor.
X.
EMPLOYER PROTECTION
Ark. Code Ann. §
11-14-108
A. An employee or job
applicant whose drug or alcohol test result is confirmed as positive in
accordance with this rule shall not, by virtue of the result alone, be deemed
to have a "handicap" or "disability" as defined under federal, state or local
handicap and disability discrimination laws.
Ark. Code Ann. §
11-14-108
B. A covered employer
who discharges or disciplines an employee or refuses to hire a job applicant in
compliance with this rule is considered to have discharged, disciplined or
refused to hire for cause. Nothing in this rule shall be construed to amend or
affect the employment-at-will doctrine.
Ark. Code Ann. §
11-14-108
C. No
physician-patient relationship is created between an employee or job applicant
and a covered employer or any person performing or evaluating a drug or alcohol
test, solely by the establishment, implementation or administration of a drug
or alcohol testing program. This section in no way relieves the person
performing the test from responsibility for acts of negligence in performing
the tests.
Ark. Code Ann. §
11-14-108
D. Nothing in this
rule shall be construed to prevent a covered employer from establishing
reasonable work rules related to employee possession, use, sale or solicitation
of drugs or alcohol, including convictions for offenses relating to drugs or
alcohol, and taking action based upon a violation of any of those
rules.
Ark. Code Ann. §
11-14-108
E. This rule does not
operate retroactively, and does not abrogate the right of an employer under
state law to lawfully conduct drug or alcohol tests, or implement lawful
employee drug-testing programs. The provisions of this rule shall not prohibit
an employer from conducting any drug or alcohol testing of employees which is
otherwise permitted by law.
Ark. Code Ann. §
11-14-108
F. If an employee or
job applicant refuses to submit to a drug or alcohol test, the covered employer
is not barred from discharging or disciplining the employee or from refusing to
hire the job applicant. However, this subsection does not abrogate the rights
and remedies of the employee or job applicant as otherwise provided in this
rule.
Ark. Code Ann. §
11-14-108
G. This rule does not
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 substances in
the workplace or in the performance of job responsibilities. Such screening or
testing is limited to the specific substances expressly identified in the
applicable statute, rule or regulation, unless prior written consent of the
employee is obtained for other tests. Such screening or testing need not be in
compliance with this rule. If applicable, such drug or alcohol testing must be
specified in a collective bargaining agreement as negotiated by the
appropriated certified bargaining agent before such testing is implemented.
XI.
SUBSTANCE
ABUSE EDUCATION/AWARENESS
A. Employee
Education/Awareness Required for Certification.
1. Covered employers are required to provide
to all employees educational materials which explain the requirements of this
section and the employer's policies and procedures with respect to these
requirements.
a. The employer shall ensure
that a copy of this material is distributed to each employee prior to the start
of the drug-free workplace program, and to each employee hired or transferred
into locations covered by the drug-free workplace program.
b. Each employer shall provide written notice
to representatives of employee organizations of the availability of this
information.
2. Required
content. The materials to be made available to employees shall include detailed
discussion of at least the following:
a. The
identity of the person designated by the employer to answer employee questions
about the materials;
b. Sufficient
information about safety-sensitive functions performed by employees to make
clear what period of the work day the employee is required to be in compliance
with this rule;
c. Specific
information concerning employee conduct that is prohibited by this
rule;
d. The circumstances under
which an employee will be tested for alcohol and/or drugs under this
part;
e. The procedures that will
be used to test for the presence of alcohol and drugs, protect the employee and
the integrity of the testing process, safeguard the validity of the test
results, and ensure that those results are attributed to the correct employee,
including post-accident information, procedures and instructions required by
this part;
f. The requirement that
an employee submit to alcohol and drug tests administered in accordance with
this rule;
g. An explanation of
what constitutes a refusal to submit to an alcohol or drug test and the
attendant consequences;
h. The
consequences for employees found to have violated the employer's drug-free
workplace program, including the requirement that the employee be removed
immediately from safety-sensitive functions;
i. The consequences for employees in
safety-sensitive positions found to have an alcohol concentration above the
cut-off limits defined by this rule;
j. Information concerning the effects of
alcohol and drug use on an individual's health, work, and personal life; signs
and symptoms of an alcohol or drug problem (the employee or a co-worker); and
available methods of intervening when an alcohol or drug problem is suspected,
including confrontation, referral to an employee assistance program and/or
referral to management.
3. Optional provision. The materials supplied
to employees may also include information on additional employer policies with
respect to the use of alcohol or drugs, including any consequences for an
employee found to have a specified alcohol or drug level, that are based on the
employer's authority independent of this rule. Any such additional policies or
consequences must be clearly and obviously described as being based on
independent authority.
4.
Certificate of receipt. Each employer shall ensure that each employee is
required to sign a statement certifying that he or she has received a copy of
these materials described in this section. Each employer shall maintain the
original of the signed certificate and may provide a copy of the certificate to
the employee.
B.
Training for Supervisors
1. Each covered
employer shall ensure that all persons designated to supervise employees
receive at least sixty (60) minutes of training on alcohol misuse and receive
at least an additional sixty (60) minutes of training on drug use.
2. The training will be used by the
supervisor to determine whether reasonable suspicion exists to require an
employee to undergo testing under Section
V. of this rule.
3. The training shall include the physical,
behavioral, speech, and performance indicators of probable alcohol misuse and
use of drugs.
XII.
CONFIDENTIALITY
Ark. Code Ann. §
11-14-109
A. All information,
interviews, reports, statements, memoranda and drug or alcohol test results,
written or otherwise, received by the covered employer through a drug or
alcohol testing program are confidential communications and may not be used or
received in evidence, obtained in discovery, or disclosed in any public or
private proceedings, except in accordance with this section or in determining
compensability under Ark. Ann. Code §
11-14-109
or Ark. Ann. Code §
11-9-409
B. Employers shall furnish the
following information to both the Commission and their insurance carrier upon
request: the name of the testing laboratory, third party administrator and MRO
being used (including contact information); and summary reports indicating the
total number, types and results of tests conducted during a specific period.
The testing laboratory is authorized to verify these reports to the Commission
and insurer.
Ark. Code Ann. §
11-14-109
C. Covered employers,
laboratories, medical review officers, employee assistance programs, drug or
alcohol rehabilitation programs, and their agents who receive or have access to
information concerning drug or alcohol test results shall keep all information
confidential. Release of such information under any other circumstance is
authorized solely pursuant to a written consent form signed voluntarily by the
person tested, unless:
1. Such release is
compelled by a hearing officer or a court of competent jurisdiction pursuant to
an appeal taken under this section;
2. Relevant to a legal claim asserted by the
employee; or
3. Is deemed
appropriate by a professional or occupational licensing board in a related
disciplinary proceeding.
D. 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.
Ark. Code Ann. §
11-14-109
E. Information on drug
or alcohol test results for tests administered pursuant to this rule shall not
be released or used in any criminal proceeding against the employee or job
applicant. Information released contrary to this section is inadmissible as
evidence in any such criminal proceeding.
Ark. Code Ann. §
11-14-109
F. This rule does not
prohibit a covered employer, agent of such employer or laboratory conducting a
drug or alcohol test from having access to employee drug or alcohol test
information or using such information when consulting with legal counsel in
connection with actions brought under or related to this section, or when the
information is relevant to its defense in a civil or administrative matter.
Neither is this section intended to prohibit disclosure among management as is
reasonably necessary for making disciplinary decisions relating to violations
of drug or alcohol standards of conduct adopted by an employer.
Ark. Code Ann. §
11-14-109
G. A person who
discloses confidential medical records of an employee, except as provided in
this rule, shall be deemed guilty of a Class C misdemeanor, as provided by Act
1552 of 1999.
XIII.
DRUG FREE PROGRAM APPROVAL PROCESS
A. It is the sole responsibility of the
employers applying for Commission review of their drug-free workplace programs
to submit accurate applications. Neither the Commission nor the insurer is
responsible for validating compliance with the program other than to assess
whether the program components as submitted comply with Rule
36. However, both the Commission
and the insurer have the right to assess actual compliance with the
program.
Ark. Code Ann. §
11-14-104
B. Any employer
wishing to acknowledge compliance with the provisions of this rule shall
annually complete and submit an application (on a form approved by the
Director) to the Division. After review of the completed form, the Division
will notify the employer of acceptance or any deficiencies that must be
corrected.
C. Substantial
compliance in completing and filing the form with the Director shall create a
rebuttable presumption that the employer has established a drug-free workplace
program and is entitled to the protection and benefit of Ark. Code Ann. §
11-14-104
-112.
D. Prior to receiving any
premium credit from an insurer pursuant to Ark. Code Ann. §
11-14-104
-112, all employers requesting premium credits shall provide the Commission
acceptance form to their insurer.
E. If a covered employer fails to maintain a
drug-free workplace program in accordance with the standards and procedures
established in this rule, the covered employer shall not be eligible for
premium credits as specified in Section
XV.
F. All covered employers qualifying for and
receiving premium credits provided under this rule must be reported annually by
the insurer to the Director on a form approved by the Director.
XIV.
APPEAL
PROCESS
A. Each employer submitting a
drug-free workplace program to the Division for review but which program is not
accepted by the Division may obtain a review of the Division staff's findings
by the Director.
B. Each insurance
company receiving notice that a client company has obtained acceptance of its
drug-free workplace program by the Division may obtain a review of the findings
made by the Director of the Division.
C. The Director of the Division shall cause a
record to be made of all submissions by the party or parties, and findings made
by the Director.
D. An employer or
insurance company may request a review by the Chief Executive Officer (C.E.O.)
of the Commission of the findings made by the Director.
E. An employer or insurance company may
request a review by the Full Commission of the findings made by the
C.E.O.
F. A request for review by
the Director of the Division, the C.E.O. or the Full Commission shall be in
writing, setting out the grounds for review. A request for review of a decision
of the Director of the Division, the CEO or the Full Commission shall be filed
with the Clerk of the Commission within fifteen (15) days of receipt of such
decision. The Director of the Division , C.E.O. or the Full Commission, as
applicable, shall decide the issues within fifteen (15) days of receipt of the
request for review, based on the written record made with the
Director.
G. The Arkansas Insurance
Department will be promptly notified by the Clerk of the Commission of requests
for review by the Full Commission. The results of Full Commission reviews will
be forwarded to the Arkansas Insurance Department for review and any
appropriate action.
XV.
RATING PLANS
Ark. Code Ann. §
11-14-112
The Insurance Commissioner shall approve rating plans for
workers' compensation insurance that give a premium credit to employers that
implement a drug-free workplace program pursuant to this rule. The plans must
take effect January 1, 2000, must be actuarially sound, and must state the
savings anticipated to result from such drug testing. The credit shall be at
least five percent (5%) unless the Insurance Commissioner determines that five
percent (5%) is actuarially unsound. This premium credit shall not be available
to employers who do not maintain their drug-free workplace program for the
entire workers' compensation insurance policy period.
XVI.
SEVERABILITY.
If any provision of this rule or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this rule which can be given effect without the
invalid provision or application, and to this end the provisions of this rule
are declared to be severable.
XVII.
EFFECTIVE DATE.
This rule shall become effective November 1, 1999; revised
effective September 20, 2001).