Ga. Comp. R. & Regs. R. 300-2-9-.03 - Drug Adjudication Policy

Current through Rules and Regulations filed through April 4, 2022

(1) These policies are general guidelines for adjudication of drug usage and drug testing related cases. The policies do not, and are not intended to establish what employers may or may not do in their own businesses. The policies address only the payment or denial of benefits under the Employment Security Law.
(2) "Drug" means any controlled substance as defined in O.C.G.A. Section 16-13-20et seq.
(3) Drug testing must be based upon "reasonable grounds." The following are reasonable grounds for testing:
(a) If the employer has a reasonable suspicion that an individual has used drugs. Reasonable suspicion includes, but is not limited to:
1. Unusual change in behavior;
2. Substantial loss of productivity;
3. Repeated tardiness;
4. Repeated absences;
5. Noticeable signs of drug intoxication;
6. Reliable information or credible report that the employee is using a drug; and
7. Other reasonable indicators that suggest the individual is taking drugs.
(b) An on-the-job accident resulting in a personal injury or more than minor property damage;
(c) If the employee has previously tested positive for a drug and has been given a second chance;
(d) Random or blanket testing of employees if all the employees in a job group are equally subject to the random or blanket test;
(e) Testing of applicants if either all applicants or all persons offered a job for a job group are subject to the test (pre-employment drug test);
(f) Any testing required by local, state or federal law or regulations;
(g) Testing pursuant to an employer's "Drug-Free Workplace Program", established in accordance with OCGA Section 34-9-410et seq. (Georgia Workers' Compensation Drug-Free Workplace Program Premium Credit Discount); or
(h) Any testing policy established by an employer to discourage the use of drugs by its employees which complies with the provisions of this rule.
(4) An employer requirement that a job candidate take a drug test does not, by itself, render the work unsuitable. An employer may require that job candidates show that they are not users of illegal drugs.
(a) If, after being referred to work by the department, an employee fails to apply for work because the employer requires a preemployment drug test, the claimant has failed to apply without good cause.
(b) If the employee refuses work because he or she is required to take a pre-employment drug test, the employee has refused work without good cause.
(c) Failing a pre-employment drug test, by itself, is grounds for disqualification under OCGA Section 34-8-195, provided, however, the drug test must comply with the provisions of these rules.
(5) When employers with a drug-free workforce policy require employees and prospective employees to consent to participate in the employer's program:
(a) The requirement that an employee consent to drug testing is not unreasonable when the consent is designed to inform the employee of the program and to secure the employee's acknowledgement that the employee will participate in the program. Mere agreement to participate in a drug testing program is not, by itself, inimical to an employment situation, unless the agreement calls for submission to an unreasonable testing program. In disputes over consent, where there is reasonable drug testing as described in these rules, the following applies:
1. If, after being referred to work, the employee fails to apply because he/she is required to consent to participate in a reasonable drug testing program, the employee has failed to apply for work without good cause;
2. If an employee fails to accept work rather than consent to participate in the employer's reasonable drug testing program, the employee has failed to accept work without good cause;
3. If an employee quits rather than consent to participate in the employer's reasonable drug testing program, the employee has left work without good cause;
4. If the employee is discharged for refusing to consent to participate in the employer's reasonable drug testing program, the employee is discharged under disqualifying conditions and is considered to be at fault in the separation.
(6) Where an employer has reasonable grounds for drug testing and an employee quits rather than be tested, the employee has quit without good cause. When an employee is discharged for refusal to submit to such drug testing, the employee shall be deemed discharged for cause.
(7) For purposes of unemployment insurance it is reasonable for an employer to require employees to submit to blanket or random drug testing.
(a) If the employer has reasonable grounds for blanket or random drug testing and the employee quits rather than be tested, the employee has quit without good cause connected with the work.
(b) If the employer has reasonable grounds for blanket or random drug testing and the employee is discharged for refusing to submit to such a test, the employee is discharged for misconduct.
(8) For drug test results to be a determinative factor under this rule, proper custody, testing and confirmation procedures must be followed; and the individual must have tested positive for a drug. Unless gas chromatography is used as the initial test, a second test of a different type must be conducted to confirm the accuracy of the first test. The laboratory which conducts the test must meet or exceed the minimum standards specified in OCGA Section 34-9-415. The results must be admitted in conformity with the requirements of OCGA Section 34-8-194.
(9) When test results are properly authenticated and the individual tested positive for a drug, the following apply:
(a) If an employee is discharged for failing a drug test it is a disqualifying discharge;
(b) If an employee fails a test and quits because a discharge is imminent, the quit is treated the same as any other quit in lieu of discharge. If discharge is not imminent and the employee quits, the quit is without good cause.
(10) When an employee fails a reasonable drug test; was previously shown to have been under the influence of drugs on the job; admits to use of drugs on the job; or violates Section (11) of these Rules, an employer may, as a condition of continued employment, require the employee to adhere to certain reasonable conditions.
(a) Reasonable conditions include, but are not limited to:
1. Agreeing to remain drug free;
2. Attending, at reasonable cost to the employee, rehabilitation or similar programs; and
3. Submitting to random drug testing to demonstrate the employee remains drug free.
(b) In adjudicating violations of last chance agreements, the following apply:
1. A discharge is disqualifying if:
(i) The employee refuses to agree to reasonable conditions required by the employer; or
(ii) The employee fails to adhere to reasonable conditions required by the employer.
2. An employee voluntarily leaves work without good cause if:
(i) The employee leaves work rather than agree to reasonable conditions required by the employer; or
(ii) The employee leaves work rather than adhere to reasonable conditions required by the employer.
(11) If the employee is discharged for illegally possessing a drug, distributing a drug, or selling a drug, the employee is considered to be at fault in the separation.
(12) Drug tests shall not be used to discriminate against employees for reasons prohibited by law.

Notes

Ga. Comp. R. & Regs. R. 300-2-9-.03
O.C.G.A. Secs. 34-8-70, 34-8-158(1), 34-8-170, 34-8-190.
Original Rule entitled "Separation by Quitting" was filed January 9, 1989; effective January 29, 1989. Repealed: New Rule entitled "Drug Adjudication Policy" adopted. F. Aug. 28, 1992; eff. Sept. 17, 1992. Repealed: New Rule of same title adopted. F. Jan. 15, 1998; eff. Feb. 6, 1998, as specified by the Agency. Amended: F. Jun. 25, 1998; eff. July 15, 1998.

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