Tennessee § 41-1-121 - Drug testing of certain personnel.

§ 41-1-121. Drug testing of certain personnel.

Notwithstanding any law to the contrary, the commissioner of correction has the authority to require security personnel employed by the department of correction to submit to drug tests. If the result of the initial test is positive, the department shall administer a different reliable confirmatory test for the purpose of determining whether the employee is using, or has used in the immediate past twenty-four (24) hours, a controlled substance or controlled substance analogue that caused impairment of the employee's work performance. Before the commissioner can require any employee to submit to the drug tests authorized by subsection (a), the commissioner must have a reasonable suspicion based upon specific objective facts that the employee's faculties are impaired on the job and the impairment presents a clear and present danger to the physical safety of the employee, another employee or the security of the institution. The specific objective facts shall be provided to the employee in writing prior to requiring tests. The employee subject to the tests shall be given the opportunity to explain the occurrence of suspicious behavior, and a viable explanation shall vitiate the requirement that the employee submit to the tests. If the results of the drug tests are confirmed pursuant to subsection (a), the employee shall be provided a copy of the tests results, including confirmatory tests. All test results, including screening and confirmatory tests, must be reviewed by a qualified individual meeting certification requirements of a recognized board of toxicology. All test results shall identify the specific drugs or metabolites tested and found, whether positive or negative. The commissioner shall require precautionary measures to ensure the confidentiality of all testing information and results and shall not release any testing information to anyone other than the tested employee without written permission of the tested employee. The commissioner shall ensure that the testing of controlled substances and controlled substance analogues shall not be used to test for any other medical or bodily condition. The commissioner shall provide the tested employee a reasonable opportunity to rebut or explain the test results. If confirmatory tests verify the use of a controlled substance or controlled substance analogue affecting the employee's job performance pursuant to subsections (a), (b) and (c), the commissioner shall be empowered to take appropriate disciplinary action based only upon the employee's job performance and pursuant to title 8, chapter 30. The commissioner shall provide employee counseling and rehabilitation with reasonable accommodation and support of the rehabilitation program. Following successful completion of a rehabilitation program and two (2) years of unimpaired job performance, any reference to testing or rehabilitation shall be expunged from any and all records. Reasonable efforts shall be made to safeguard the privacy of any employee required to enroll in a rehabilitation program. If the initial or confirmatory test results are negative, any information, including the results of the test, shall be expunged from all files and records after being made available to the tested employee. The commissioner is responsible for all costs associated with drug tests administered at the request of the department. Prior to implementation of any testing program, the department shall promulgate a specific, written policy pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, authorizing the tests, procedures, confidentiality and expunction provisions of this section. The policy shall include the requirement that the employee have an opportunity to have an independent analysis of the sample conducted by the laboratory of the employee's choice. If any employee refuses to submit to the test, the employee shall have the option of entering a rehabilitation program pursuant to subsection (d). The commissioner shall have the burden of proving that subsections (a)-(h) have been followed. If any provision of this section is rendered unconstitutional by the Constitution of the United States or the Constitution of Tennessee or invalid by the laws of the United States or the laws of the state of Tennessee, the unconstitutional or invalid provision of this section may be deleted by the courts if the deletion will not destroy the integrity, intent or function of this section. Acts 1988, ch. 905, § 1; T.C.A., § 41-1-122 ; Acts 2012, ch. 848, § 37. Cross-References. Confidentiality of public records, § 10-7-504 . Controlled substances, title 39, ch. 17, part 4. Attorney General Opinions. If the Tennessee department of correction elects to implement a drug-free workplace program, it need not comply with this section, OAG 04-019, 2004 Tenn. AG LEXIS 19 (2/09/04). If the Tennessee department of correction does not implement the statutory drug-free workplace program, it is prohibited from drug testing of security personnel in the absence of reasonable suspicion; provided such testing comports with federal law, all its employees may be tested randomly for alcohol, and all non-security personnel may be tested randomly for drugs, OAG 04-019, 2004 Tenn. AG LEXIS 19 (2/09/04).