803 KAR 25:280. Certification of
drug-free workplace.
RELATES TO: KRS 13B.140, 217.900(1),
218A.010(6), 304.13-167, 342.011(9), 342.640, 342.660, 351.010(1)(m)
STATUTORY AUTHORITY: KRS 304.13-167
NECESSITY, FUNCTION AND CONFORMITY: KRS 304.13-167(6)
requires the Executive Director of the Office of Workers’ Claims to promulgate
administrative regulations regarding a drug-free workplace program for Kentucky
employers to implement. This administrative regulation establishes the
requirements for employers to apply and be certified by the Office of Workers’
Claims for implementing a drug-free workplace program.
Section 1. Definitions. (1) "Alcohol"
means ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, produced from
any source or process.
(2) "Consortium" means an
entity, which may involve varied pools of employers and their employees,
established to provide cost-effective services to employers
to help the employers comply with drug-free workplace program requirements and
may provide employer education, supervisor training, and drug and alcohol testing
at a reduced cost to the employers who choose to participate.
(3) "Drug" means a
controlled substance as defined in KRS 218A.010(6) and as established in 902
KAR Chapter 55, including:
(a) Amphetamines;
(b) Cannabanoids/THC;
(c) Cocaine;
(d) Opiates;
(e) Phencyclidine (PCP);
(f) Benzodiazepines;
(g) Propoxyphene;
(h) Methaqualone;
(i) Methadone;
(j) Barbiturates;
(k) Synthetic narcotics;
(l) Illicit substances; and
(m) Volatile substances as defined by KRS 217.900(1).
(4) "Drug or alcohol rehabilitation
program" means a service provider that provides confidential, timely, and
expert identification, assessment, treatment, and resolution of employee drug
or alcohol abuse.
(5) "Drug test" or
"test" means a chemical, biological, or physical instrumental
analysis administered by a qualified laboratory, for the purpose of determining
the presence or absence of a drug or its metabolites or alcohol pursuant to standards, procedures,
and protocols established by the U.S. Department of Health and Human Services'
Substance Abuse and Mental Health Services Administration (SAMHSA), at http://www.workplace.samhsa.gov/.
(6) "Employee" is defined by
KRS 342.640.
(7) "Employee
Assistance Program" means an established program providing:
(a) Professional assessment of employee
personal concerns;
(b) Confidential and timely services to
identify employee alcohol or substance abuse;
(c) Referrals of employees with alcohol
or substance abuse for appropriate diagnosis, treatment, and assistance; and
(d) Follow-up services for employees who
participate in a drug
or alcohol rehabilitation program and are recommended for monitoring after
returning to work.
(8) "Employer" means a corporation,
partnership, sole proprietorship, or other business entity doing business in Kentucky which is required to comply with the provisions of KRS Chapter 342 or voluntarily
covers excluded employees pursuant to KRS 342.660.
(9) "Executive director" is defined by
KRS 342.0011(9).
(10) "Illicit substance" is
defined by KRS 351.010(1)(m).
(11) "Medical review officer"
or "MRO" means a licensed physician with knowledge of substance abuse
disorders, laboratory testing, chain of custody, collection procedures, the
ability to verify positive, confirmed test results, and the necessary medical
training to interpret and evaluate a positive test result in relation to the
person’s medical history or any other relevant biomedical information.
(12) "Office" is defined by KRS
342.0011(8).
(13) "Qualified laboratory"
means a laboratory certified in accordance with the National Laboratory
Certification Program (NLCP) by the United States Department of Health and
Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA).
(14) "Reasonable suspicion
testing" means drug or alcohol testing that meets the requirements in
Section 3 of this administrative regulation.
(15) "Serious physical injury" means
an injury which has a reasonable potential to cause death.
Section 2. Applicability. (1) Employer
participation in the Drug-Free Workplace Program shall be voluntary.
(2) All drug or alcohol testing shall be
conducted:
(a) In accordance with applicable federal
and state requirements, as utilized in each part of the testing process; and
(b) As required by this administrative
regulation for participants in the Drug-Free Workplace Program.
Section 3. Requirements for a Drug-Free Workplace Program.
To obtain certification for a drug-free workplace program, an employer shall
comply with all of the following minimum requirements:
(1) The program shall include alcohol and
substance abuse education and awareness training for employees and supervisors
which:
(a) Provides to all employees written
materials explaining the employer’s policies and procedures with respect to the
drug-free workplace program;
(b) Provides each employee at least one
(1) hour of initial, and at least thirty (30) minutes refresher each year
thereafter, of alcohol and substance abuse education and awareness training
which shall include, at a minimum, information concerning:
1. Alcohol and drug testing;
2. The effects of alcohol and drug use on
an individual’s health, work, and personal life;
3. The disease of alcohol or drug
addiction;
4. Signs and symptoms of an alcohol or
drug problem;
5. The role of coworkers and supervisors
in addressing alcohol or substance abuse; and
6. Referrals to an employee assistance
program; and
(c)1. Provides all supervisory personnel,
in addition to the training specified in paragraph (b) of this subsection, with
thirty (30) minutes each year of alcohol and substance abuse education and awareness
training.
2. The training shall include, at a
minimum, information on:
a. Recognizing the signs of alcohol and
substance abuse in the workplace;
b. How to document signs of employee
alcohol or substance abuse;
c. How to refer employees to an employee
assistance program or other alcohol and substance abuse treatment; and
d. Legal and practical aspects of
reasonable suspicion testing for the presence of drugs and alcohol;
(2) Within the program, reasonable
suspicion testing shall be 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, training, or education. The reasonable
suspicion testing shall be based upon:
(a) While at work, direct observation of
drug or alcohol use or of the physical symptoms or manifestations of being
under the influence of a drug or alcohol;
(b) While at work, abnormal conduct,
erratic behavior, or a significant deterioration in work performance;
(c) A report of drug or alcohol use
provided by a reliable and credible source;
(d) Evidence that an individual has
tampered with a drug or alcohol test during employment with the current covered
employer;
(e) Information that an employee has
caused, contributed to, or been involved in an accident while at work; or
(f) Evidence that an employee has used,
possessed, sold, solicited, or transferred illegal or illicit drugs or used
alcohol while on the covered employer’s premises or while operating the covered
employer’s vehicle, machinery, or equipment;
(3) The program shall include breath
alcohol and urine drug testing to which job applicants or employees shall be
required to submit at the following times:
(a) For urine drug testing:
1. After conditional offer of employment;
2. After being selected using a
statistically valid, unannounced random method;
3. Upon reasonable suspicion of
prohibited drug use;
4. At follow-up testing at least once per
quarter for one (1) year after the employee’s successful completion of an
employee assistance program for drug-related problems, or a drug rehabilitation
program, or as recommended by the person administering the drug rehabilitation
program; and
5. Following an accident on the premises
of the employer or in the course of employment for the employer which requires
off-site medical attention be given to a person.
(b) For breath alcohol testing:
1. After conditional offer of employment;
2. Upon reasonable suspicion of
prohibited alcohol use;
3. Following an accident on the premises
of the employer or in the course of employment for the employer which requires
off-site medical attention be given to a person; and
4. Follow-up testing at least once per
quarter for one (1) year after the employee's successful completion of an
employee assistance program for alcohol-related problems, or an alcohol
rehabilitation program, or as recommended by the person administering the
alcohol rehabilitation program;
(4) The office may issue a certification
for a program that provides for alcohol and drug testing of other fluids or products
of the human body capable of revealing the presence of drugs or alcohol if the
testing is as accurate as, and equivalent to, breath alcohol and urine drug
testing and complies with this section of this administrative regulation;
(5) The program shall include the minimum
testing protocol which shall include:
(a) A maximum acceptance level of breath
alcohol concentration, which shall be a concentration of four-hundredths
(0.04); and
(b) An eleven (11) panel urine test that
shall include testing for the following substances:
1. Amphetamines;
2. Cannabanoids/THC;
3. Cocaine;
4. Opiates;
5. Phencyclidine (PCP);
6. Benzodiazepines;
7. Propoxyphene;
8. Methaqualone;
9. Methadone;
10. Barbiturates; and
11. Synthetic narcotics;
(6) The program shall provide that the
collection of samples and administration of drug and alcohol tests shall follow
all standards, procedures and protocols set forth by the U.S. Department of
Health and Human Services’ Substance Abuse and Mental Health Administration
(SAMHSA), at http://www.workplace.samhsa.gov/;
(7) The program shall provide that the
test results have been performed by a qualified laboratory;
(8) The program shall include medical
review of test results as follows:
(a)1. All test results shall be submitted
for medical review by the medical review officer (MRO), who shall consider the
medical history of the employee or applicant, as well as other relevant
biomedical information.
2. If there is a positive test result,
the employee or applicant shall be given an opportunity to report to the MRO
the use of any prescription or over-the-counter medication.
(b)1. If the MRO determines that there is
a legitimate medical explanation for a positive test result, the MRO shall
certify that the test results do not indicate the unlawful use of alcohol or a
controlled substance.
2. If the MRO
determines, after appropriate review, that there is not a medical explanation
for the positive test result other than the unauthorized use of alcohol or a
prohibited drug, the MRO shall refer the individual tested
to an employee assistance program or to a personnel or administrative officer
for further proceedings in accordance with the employer’s drug-free workplace
program.
(c) Determinations
concerning the use of alcohol or a controlled or illicit substance shall comply
with all procedures outlined in the U.S. Department of Health and Human
Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) "Medical
Review Officer Manual for Federal Agency Workplace Drug Testing Programs";
(9) The program shall include an employee
assistance program (EAP) for its employees and supervisory personnel.
(a) The employer shall:
1. Establish the EAP as a part of its
internal personnel services; or
2. Contract with an entity that provides
EAP services.
(b) The employer's participation in a
consortium shall satisfy this requirement; and
(10) The program shall include
controlled-access maintenance at the employer’s place of business of records
including the names and position titles of all employees and supervisory
personnel trained under the program, and the names of all persons who presented
alcohol and substance abuse training, for review by the office.
Section 4. Confidentiality of records. Records of
drug or alcohol test results, written or otherwise, received by the employer
shall be confidential communications and shall not be disclosed by the employer
to any party unless:
(1) A written release of information is
granted and signed by the employee; or
(2) The release is ordered by a court of
competent jurisdiction.
Section 5. Application Requirements.
Employers who desire a drug-free workplace certification pursuant to KRS 304.13-167
shall submit to the office an initial notarized application, and annually thereafter,
in the form of an affidavit executed by the owner or chief executive officer of
the business establishing that it provides a drug-free workplace by:
(1) Providing a copy of a statement to
each employee and posting the statement in a prominent place at each worksite. The
statement shall:
(a) Notify employees that the unlawful
manufacture, distribution, dispensation, possession, or use of alcohol or a controlled
or illicit substance is prohibited in the workplace;
(b) Identify methods that may be used by
the employer to determine if violations by an employee exists; and
(c) Specify the actions that will be
taken against employees for violations of the prohibition;
(2) Establishing an alcohol and substance
abuse education and awareness training program which complies with the minimum
requirements of Section 3 of this administrative regulation to inform employees
and supervisory personnel about:
(a) The dangers of drug abuse in the
workplace;
(b) The role of co-workers and
supervisors in addressing alcohol or drug abuse;
(c) The employer’s policy of maintaining
a drug-free workplace;
(d) Available drug counseling,
rehabilitation, and employee assistance programs; and
(e) The penalties for violations of the
drug-free workplace policy;
(3) Establishing a program that includes
alcohol and drug testing performed as established in Section 3 of this administrative
regulation;
(4) Providing an Employee Assistance
Program which shall:
(a) Include:
1. Professional assessment of employee
personal concerns;
2. Confidential and timely services to
identify employee drug or alcohol abuse;
3. Referrals of employees for appropriate
diagnosis, treatment, and assistance with regard to employee alcohol or
substance abuse; and
4. Follow-up services for employees who
participate in a drug
or alcohol rehabilitation program and are recommended for monitoring after
returning to work; and
(b) Provide services regardless of race,
color, religion, national origin, disability, sex, or age;
(5) Verifying that the frequency and
duration of each employee and supervisor training session meets the
requirements of Section 3 of this administrative regulation;
(6) Verifying that all employees have
participated, or shall participate during the calendar year, in the required
alcohol and substance abuse education and awareness training sessions;
(7) Maintaining a drug-free workplace throughout
its workers’ compensation insurance policy period; and
(8) Maintaining the drug-free workplace
program in compliance with all federal and state laws and regulations that
apply to that particular business.
Section 6. Required Documentation. (1) An
employer’s initial application shall be accompanied by copies of the following
documents:
(a) The employer’s written drug-free
workplace policy;
(b) Documents provided to employees
regarding the drug-free workplace program if different from the policy; and
(c) The following, if not included in the
drug-free workplace policy:
1. A statement identifying each alcohol
and drug test that will be conducted;
2. A statement describing the employer’s
Employee Assistance Program;
3. A description of the alcohol and
substance abuse education and awareness training program for employees and
supervisory personnel; and
4. A statement describing the
confidentiality of the employer’s drug-free workplace program.
(2) Employers shall attach the documents
listed in subsection (1) to a renewal application only if a substantive change
or amendment has been made to the material filed with the initial application.
Section 7. Certification of Drug-Free
Workplace Procedure. (1)(a) If the office receives an incomplete application of
certification of drug-free workplace, the office shall notify an employer in
writing of an incomplete application and shall state the necessary information
or documents to provide a complete review of the application;
(b) The employer shall provide the
additional information and documents within fifteen (15) days of the notification
of an incomplete application; and
(c) If the employer fails to provide the
requested information, the application shall be denied.
(2)(a) Within sixty (60) days of receipt
of a complete application, the office shall issue a written statement to the
applicant approving or denying the application; and
(b) If the application is denied, the
written notification shall specifically state the reasons for the denial.
(3) The notification of approval or
denial shall be mailed by certified mail, return receipt requested to the
address listed on the application.
(4)(a) If an employer, who has been
certified to have a drug-free workplace program, discontinues or fails to maintain
its program in compliance with this administrative regulation, the office shall
revoke the employer’s certification.
(b) The office shall submit written
notification of the revocation which shall:
1. Include specific reasons for the
revocation; and
2. Shall be mailed by certified mail,
return receipt requested, to the address listed on the employer’s
certification.
(5) Service by certified mail shall be
complete:
(a) Upon delivery of the notification;
(b) Upon acceptance by any person
eighteen (18) years or older at the employer address;
(c) Upon refusal to accept by a person at
the employer’s address;
(d) Upon the U.S. Postal Service’s
inability to deliver the notification if properly addressed; or
(e) Upon failure of the applicant to
claim the notification prior to its return to the office by the U.S. Postal
Service.
(6) The return receipt or envelope shall
be proof of acceptance, refusal, inability to deliver, or failure to claim the
envelope.
Section 8. Denial or Revocation of Certification.
(1) If an employer’s application for certification is denied or revoked, an
employer may request, in writing, a hearing before the executive director on
the denial or revocation of certification;
(2) The request for a hearing shall be
filed with the office within twenty (20) days from the date of the notice of
denial or revocation;
(3) Upon receipt of a request for a
hearing, the executive director shall issue a notice of hearing to be held no
sooner than ten (10) days and no later than thirty (30) days after the request unless
agreed to by the parties;
(4) No later than thirty (30) days after
the hearing is closed, the executive director shall issue a written order concerning
all matters addressed at the hearing; and
(5) The executive director’s final order
may be appealed to the Franklin Circuit court in accordance with KRS 13B.140.
Section 9. Incorporation by Reference. (1)
The following material is incorporated by reference:
(a) Form DFW, "Applicant’s
Affidavit: Drug-Free Workplace Program", (Sept. 2007 edition); and
(b) The "Medical Review Officer
Manual for Federal Agency Workplace Drug Testing Programs", issued by the
Department of Health and Human Services, November 1, 2004 edition (DHHS Publication
No. (Administrative Regulation) 88-1526).
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Office of Workers’ Claims, 657 Chamberlin Avenue, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30
p.m. (34 Ky.R. 1597; 2399; eff. 6-6-2008.)
