Tennessee Employers Subject to New Drug Test Obligations

New law imposes reporting requirements on healthcare practitioner employers

By Dale L. Deitchler, Harry W. Wellford Jr. and Jennifer Robinson © Littler Jul 17, 2017

A new Tennessee law that went into effect on July 1 imposes new reporting requirements on healthcare practitioner (HCP) employers. Under the new reporting law, in certain circumstances, HCP employers must "promptly" report to the state HCP employees with confirmed (positive) drug test results or those who refuse to submit to any work-related or directed drug test, including but not limited to pre-employment drug tests. 

The law does not apply to confirmed positive alcohol tests or refusals to submit to alcohol testing. The law does not contain an affirmative reporting obligation requiring reporting of information to other employers, although it does create a mechanism for certain employers to share information.

HCPs must either explain the result or report to and comply with peer assistance or treatment program requirements of the appropriate board. Under the new law, HCPs have three business days from the time of notification of a confirmed test result to either produce a lawful prescription for the drug or a valid medical reason for using a drug to their employer or report to the state's substance abuse peer assistance or treatment program of the HCP's board.

HCP employers must report non-compliant HCPs to the Tennessee department of health and the appropriate HCP board. If HCPs lacking prescriptions or valid medical reasons fail to report to, or fail to participate in and comply with, the applicable peer assistance or treatment program, the program must report the HCP's violation of the law to the appropriate board. In addition, the HCP employer must report the confirmed drug test, refusal and violation of the act to the Tennessee Department of Health and the appropriate licensing board. Further, the appropriate board will suspend the license of HCPs who fail to comply with the terms and conditions of the program. According to the bill's legislative history, the intent of these programs is to keep addicted employees away from patients until they are drug-free.

HCP employers have no affirmative obligation to report HCPs to other employers, but some information may be shared through quality improvement committees. While there is no affirmative reporting obligation to report confirmed drug tests or test refusals to other healthcare employers, the new law allows "quality improvement committees" (QICs) to "share information concerning substance abuse" by HCPs licensed or certified under Tennessee health care laws with "another quality improvement committee" pursuant to statutory protocols "in furtherance of the functions of the committees." Legally compliant sharing of information between QICs is subject to protective "privilege" of the disclosure. While Tennessee healthcare employers might anticipate that other non-QIC disclosures would ultimately be subject to privilege as established by Tennessee reviewing courts, unless and until such a ruling issues, Tennessee HPC employers should disclose only confirmed drug tests, test refusals and violations of the new law if the HCP has failed to satisfy the explanation and peer assistance/treatment program requirements of the new law.

Dale L. Deitchler is an attorney with Littler in Minneapolis. Harry W. Wellford Jr. is an attorney with Littler in St. Louis. Jennifer Robinson is an attorney with Littler in Nashville, Tenn. © Littler. All rights reserved. Reposted with permission.

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