Current through Rules and Regulations filed through March 20, 2024
(1) These policies are general guidelines for
adjudication of drug usage and drug testing related cases. The policies do not,
and are not intended to establish what employers may or may not do in their own
businesses. The policies address only the payment or denial of benefits under
the Employment Security Law.
(2)
"Drug" means any controlled substance as defined in O.C.G.A. Section
16-13-20et
seq.
(3) Drug testing must
be based upon "reasonable grounds." The following are reasonable grounds for
testing:
(a) If the employer has a reasonable
suspicion that an individual has used drugs. Reasonable suspicion includes, but
is not limited to:
1. Unusual change in
behavior;
2. Substantial loss of
productivity;
3. Repeated
tardiness;
4. Repeated
absences;
5. Noticeable signs of
drug intoxication;
6. Reliable
information or credible report that the employee is using a drug; and
7. Other reasonable indicators that suggest
the individual is taking drugs.
(b) An on-the-job accident resulting in a
personal injury or more than minor property damage;
(c) If the employee has previously tested
positive for a drug and has been given a second chance;
(d) Random or blanket testing of employees if
all the employees in a job group are equally subject to the random or blanket
test;
(e) Testing of applicants if
either all applicants or all persons offered a job for a job group are subject
to the test (pre-employment drug test);
(f) Any testing required by local, state or
federal law or regulations;
(g)
Testing pursuant to an employer's "Drug-Free Workplace Program", established in
accordance with OCGA Section
34-9-410et
seq. (Georgia Workers' Compensation Drug-Free Workplace Program
Premium Credit Discount); or
(h)
Any testing policy established by an employer to discourage the use of drugs by
its employees which complies with the provisions of this rule.
(4) An employer requirement that a
job candidate take a drug test does not, by itself, render the work unsuitable.
An employer may require that job candidates show that they are not users of
illegal drugs.
(a) If, after being referred to
work by the department, an employee fails to apply for work because the
employer requires a preemployment drug test, the claimant has failed to apply
without good cause.
(b) If the
employee refuses work because he or she is required to take a pre-employment
drug test, the employee has refused work without good cause.
(c) Failing a pre-employment drug test, by
itself, is grounds for disqualification under OCGA Section
34-8-195, provided, however, the drug test must comply with the provisions of these
rules.
(5) When
employers with a drug-free workforce policy require employees and prospective
employees to consent to participate in the employer's program:
(a) The requirement that an employee consent
to drug testing is not unreasonable when the consent is designed to inform the
employee of the program and to secure the employee's acknowledgement that the
employee will participate in the program. Mere agreement to participate in a
drug testing program is not, by itself, inimical to an employment situation,
unless the agreement calls for submission to an unreasonable testing program.
In disputes over consent, where there is reasonable drug testing as described
in these rules, the following applies:
1. If,
after being referred to work, the employee fails to apply because he/she is
required to consent to participate in a reasonable drug testing program, the
employee has failed to apply for work without good cause;
2. If an employee fails to accept work rather
than consent to participate in the employer's reasonable drug testing program,
the employee has failed to accept work without good cause;
3. If an employee quits rather than consent
to participate in the employer's reasonable drug testing program, the employee
has left work without good cause;
4. If the employee is discharged for refusing
to consent to participate in the employer's reasonable drug testing program,
the employee is discharged under disqualifying conditions and is considered to
be at fault in the separation.
(6) Where an employer has reasonable grounds
for drug testing and an employee quits rather than be tested, the employee has
quit without good cause. When an employee is discharged for refusal to submit
to such drug testing, the employee shall be deemed discharged for
cause.
(7) For purposes of
unemployment insurance it is reasonable for an employer to require employees to
submit to blanket or random drug testing.
(a)
If the employer has reasonable grounds for blanket or random drug testing and
the employee quits rather than be tested, the employee has quit without good
cause connected with the work.
(b)
If the employer has reasonable grounds for blanket or random drug testing and
the employee is discharged for refusing to submit to such a test, the employee
is discharged for misconduct.
(8) For drug test results to be a
determinative factor under this rule, proper custody, testing and confirmation
procedures must be followed; and the individual must have tested positive for a
drug. Unless gas chromatography is used as the initial test, a second test of a
different type must be conducted to confirm the accuracy of the first test. The
laboratory which conducts the test must meet or exceed the minimum standards
specified in OCGA Section
34-9-415.
The results must be admitted in conformity with the requirements of OCGA
Section
34-8-194.
(9) When test results are properly
authenticated and the individual tested positive for a drug, the following
apply:
(a) If an employee is discharged for
failing a drug test it is a disqualifying discharge;
(b) If an employee fails a test and quits
because a discharge is imminent, the quit is treated the same as any other quit
in lieu of discharge. If discharge is not imminent and the employee quits, the
quit is without good cause.
(10) When an employee fails a reasonable drug
test; was previously shown to have been under the influence of drugs on the
job; admits to use of drugs on the job; or violates Section (11) of these
Rules, an employer may, as a condition of continued employment, require the
employee to adhere to certain reasonable conditions.
(a) Reasonable conditions include, but are
not limited to:
1. Agreeing to remain drug
free;
2. Attending, at reasonable
cost to the employee, rehabilitation or similar programs; and
3. Submitting to random drug testing to
demonstrate the employee remains drug free.
(b) In adjudicating violations of last chance
agreements, the following apply:
1. A
discharge is disqualifying if:
(i) The
employee refuses to agree to reasonable conditions required by the employer;
or
(ii) The employee fails to
adhere to reasonable conditions required by the employer.
2. An employee voluntarily leaves work
without good cause if:
(i) The employee leaves
work rather than agree to reasonable conditions required by the employer;
or
(ii) The employee leaves work
rather than adhere to reasonable conditions required by the employer.
(11) If the
employee is discharged for illegally possessing a drug, distributing a drug, or
selling a drug, the employee is considered to be at fault in the
separation.
(12) Drug tests shall
not be used to discriminate against employees for reasons prohibited by
law.
O.C.G.A. Secs.
34-8-70, 34-8-158(1), 34-8-170, 34-8-190.
