2017 TENN. HB 1067 provides that an individual “healthcare practitioner” violates state law by refusing to submit to an employer ordered drug test or by testing positive for one or more controlled drugs without having either a lawful prescription, or “a valid medical reason for using the drug.” Following a positive drug test, the healthcare practitioner’s employer must provide the employee 3 business days to either (1) present evidence of a lawful prescription for the drug or valid medical reason for using it; or (2) self-report the substance abuse to the practitioner’s peer assistance or substance abuse treatment program established by the State licensing board that oversees the practitioner’s field.
If the practitioner employee produces evidence of a legal prescription or valid medical reason for using the drug, or the practitioner’s State licensing board accepts the practitioner employee into its substance abuse assistance or treatment program, the employer has no reporting obligation regarding the positive drug test result. Absent any of those, however, the employer must report the fact of a refusal to submit to a drug test or a positive test result to the Tennessee Department of Health and the practitioner’s State licensing or certifying board.
The term “employer” as used in this new statute encompasses virtually all entities that provide healthcare services. The term is specifically defined to include all healthcare facilities licensed under Tennessee law, as well as “any other healthcare employer that employs healthcare practitioners.” Covered “healthcare practitioners” under the Act include all practitioners in the healthcare field who are required to possess a license or certification, with the exception of veterinarians. A non-exclusive list of these individuals includes medical doctors, dentists, osteopaths, podiatrists, optometrists/opticians, chiropractors, pharmacists, nurses, occupational therapists, physical therapists, licensed social workers, drug abuse counselors, athletic trainers, psychologists and other professional counselors, dietitians/nutritionists, physician assistants, and nursing home administrators.
It is important to note that this new statute only pertains to testing for controlled and illegal drugs. It does not extend its reporting requirements to positive alcohol testing. In addition, the statute does not mandate that employers undertake any form of drug testing of healthcare practitioners. Whether that obligation otherwise exists requires analysis of each practitioner’s specific licensure obligations under state law and, if applicable, federal law. The statute does not specify a time frame in which an employer must report a practitioner’s refusal to submit to a drug test or a positive drug test result. It does, however, authorize the Commissioner of the Department of Health to issue regulations relating to enforcement of the law. Ideally, any regulations promulgated by the Department will address such timing requirements.
Finally, the new statute does not purport to alter the nature of the employment relationship. Thus, if it is the employer’s practice to terminate practitioners who refuse to submit to drug testing or following a positive test result, this new law does not affect the employer’s right to continue that practice.
If you would like to speak to John Lawhorn on this or any other matter, he may be reached at (865) 546-9321.
John M. Lawhorn of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.