Georgia employers participating in the state’s drug-free workplace (DFW) program must be careful to strictly follow the program’s guidelines or risk incurring workers’ compensation benefit liability they never intended.
Georgia employers receive a 7.5% discount on their workers’ compensation premiums in return for following the DFW program rules. But failure to follow the rules will result in the employer paying back all the premium discounts it received—plus its workers’ comp policy will be canceled.
How DFW works
In exchange for lower workers’ compensation premiums, Georgia employers can agree to adopt the drug-free workplace program. Under the program, employers may test employees starting 60 days after notifying employees the program is starting.
Employers may test all job applicants prior to hiring, but may limit testing and still maintain compliance. For example, employers may limit testing to “sensitive positions from a safety, health or security standpoint.” Testing may be limited to full-time employees or employees who work more than a given number of hours per week. Employers may also conduct reasonable-suspicion drug testing. Any employee who appears to be behaving oddly may be tested, but employers must thoroughly document the reasons for testing the individual.
Georgia’s DFW also requires employers to routinely conduct fitness-for-duty examinations that include drug testing. For employees who enter an for drug-related reasons or who otherwise enter drug rehabilitation, employers must perform follow-up testing once a year for two years following program completion. Follow-up testing must be done without warning to the employee. However, if the employee entered the program voluntarily, employers may elect not to perform follow-up testing and still keep the workers’ comp discount.
Employers may elect to test blood, urine or hair samples. In each case, the laboratory performing the test must collect enough for two tests. If the first test comes back positive for a controlled substance, the employee may request the other sample be tested to confirm the result. If the first test is negative, the employer may, but does not have to, request a confirmation test.
Only laboratories certified to perform the drug testing may administer the tests. The laboratories provide a medical review officer to oversee testing. The medical review officer will review any positive tests to determine whether any legal prescription or nonprescription drug could have caused the positive results. Employers may not terminate an employee for a positive test unless the medical review officer has reviewed the test and the confirmation test shows the same result. The employer must pay for any employer-required drug testing.
Case study: What can go wrong
George Johnson drove a cement truck for Cemex, a Florida concrete company. Florida’s DFW program is similar to Georgia’s. According to Johnson’s testimony, he was in the vehicle on a dangerously narrow road when the truck’s computer malfunctioned. That caused the engine to rev and the cement drum to rotate at high speed. The vibration collapsed the ground, and the truck rolled over with Johnson inside.
Following the accident, Johnson was tested for drugs, and the results came back positive for marijuana. Cemex terminated him. Johnson denied using marijuana and requested a confirmation test. Cemex told him he would have to pay for the confirmation test.
Johnson filed for workers’ for injuries he suffered. The employer claimed that his positive drug test meant he wasn’t eligible to receive benefits under DFW rules.
But the court noted that Cemex violated several DFW rules. First, it terminated Johnson before a confirmation test had been run. Then it erroneously told him that he was responsible for paying for the confirmation test. As a result, the court determined that Cemex was no longer a drug-free workplace and was not entitled to the presumption that a positive drug test indicated the employee was at fault and ineligible for benefits.
The court also determined that Johnson’s explanation of the accident was plausible and unchallenged. Under the circumstances Johnson described, the accident would have happened whether or not he was using marijuana. Cemex now risks losing its workers’ comp premium discount.
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