Current through Rules and Regulations filed through March 20, 2024
(1)
Introduction:
The General Assembly found that unlawful drug activity is a
serious threat to the public health, safety, and welfare and declared that the
public workforce must be free of any person who would knowingly engage in such
activity.
The State is committed to maintaining a drug-free and
alcohol-free workplace. In support of this commitment, the State conducts
substance abuse testing as described in this Rule. Employees who violate
workplace expectations are subject to disciplinary action, up to and including
dismissal and disqualification from employment, as outlined in this Rule and in
Sub-Rules 478-1-.21 A through 478-1-.21 G.
(2)
Applicability:
The policies and procedures within this Rule apply to all
agencies of the Executive Branch, local departments of Public Health,
Authorities, and Community Service Boards. This Rule does not apply to the
Board of Regents of the University System of Georgia, Legislative Branch, or
Judicial Branch.
(3)
Definitions:
For the purposes of this Rule, the following terms and
definitions apply in addition to those in
478-1-.02, Terms and
Definitions:
(a) "Adulterated Sample"
means a specimen that has been altered and contains a substance that is not
expected to be present in human urine or a substance that is expected to be
present but is at an abnormal concentration.
(b) "Alcohol" means the intoxicating agent in
beverage alcohol, ethyl alcohol, or other low molecular weight alcohol,
including methyl and isopropyl alcohol.
(c) "Alcohol Concentration" or "Alcohol
Content" means the alcohol in a volume of breath expressed in terms of grams of
alcohol per 210 liters of breath as indicated by an alcohol test. For blood
alcohol tests it means the level of alcohol in terms of grams of alcohol per
100 milliliters of blood.
(d)
"Alcohol Confirmation Test" means a subsequent test using an evidential breath
testing device (EBT) following an alcohol screening test with a result of 0.02
or greater. The EBT must be approved by the National Highway Traffic Safety
Administration (NHTSA) and placed on its "Conforming Products List of
Evidential Breath Measurement Devices." Such testing must be performed by a
certified Breath Alcohol Technician.
(e) "Alcohol Screening Device" (ASD) means a
breath or saliva device that is approved by NHTSA and placed on a Conforming
Products list for such devices.
(f)
"Alcohol Screening Test" means an analytic procedure to determine whether an
employee may have a prohibited concentration of alcohol in a breath, saliva, or
blood specimen.
(g) "Alcohol Test"
or "Alcohol Testing" means conducting an alcohol screening test and, if needed,
an alcohol confirmation test.
(h)
"Appointing Authority" means, for purposes of this Rule, the agency/entity or
an official with decision-making authority within the agency/entity.
(i) "Breath Alcohol Technician" (BAT) means
an individual who instructs and assists individuals in the alcohol testing
process and can operate an evidential breath testing device in accordance with
federal alcohol testing regulations.
(j) "Chain of Custody" means the procedure
used to document the handling of a urine or other specimen authorized within
federal testing programs from the time the donor gives the specimen to the
collector until the specimen is destroyed.
(k) "Collector" means a person who: instructs
and assists donors during the drug testing collection process; receives and
makes an initial inspection of specimens provided by donors; completes the
Custody and Control Form (CCF); and, is trained according to either United
States Department of Transportation (DOT) standards for federally regulated
donors or Health and Human Services standards for non-federally regulated
donors.
(l) "Controlled Substance"
means a drug or substance in Schedules I-V of O.C.G.A.
16-13-21, et seq., or 21 C.F.R. Part
1308 declared by state or federal law to be
illegal for sale or use, unless used with a valid prescription from a health
care practitioner.
(m) "Custody and
Control Form (CCF)" means the drug testing form used to follow the chain of
custody procedure.
(n) "Dangerous
Drug" means any drug or substance, other than a controlled substance, declared
by state or federal law to be illegal for sale or use, unless used with a valid
prescription from a health care practitioner.
(o) "Donor" means an individual providing a
specimen for drug testing.
(p)
"Drug Testing" or "Drug Test" means the collection and testing of urine
administered as required by applicable regulations for the particular testing
program. Testing of substances other than urine is permitted only when
authorized by such governing regulations.
(q) "Federally Regulated Transportation
Position" means any transportation position whose incumbent is required to
undergo drug and alcohol testing pursuant to United States Department of
Transportation or United States Coast Guard regulations. In general, such
positions are those for which the duties require the possession of a valid
commercial driver's license or involve public transportation or maritime
functions.
(r) "High-Risk Position"
means a position whose incumbent regularly performs high-risk work. Examples
include, but are not limited to, officers required to carry a firearm, medical
professionals, non-federally regulated drivers, in-home care providers,
firefighters, heavy equipment operators, pilots, and aircraft mechanics. The
term high-risk position does not include federally regulated transportation
positions.
(s) "High-Risk Work"
means those duties where inattention or errors in judgment will have the
potential for significant risk of harm to the individual or others.
(t) "Illegal Drug" means, but is not limited
to, marijuana/cannabinoids (THC), cocaine, amphetamines/meth-amphetamines,
opioids, phencyclidine (PCP), or any controlled substance or dangerous drugs
not used in a lawful manner. The term illegal drug does not include any drug
used pursuant to, and in accordance with, a valid prescription and not
otherwise prohibited by state or federal law.
(u) "Medical Marijuana" or "low THC oil"
means an oil, prescribed by a physician for medical use, containing no more
than 5% tetrahydrocannabinol (THC), and an amount of cannabidiol (CBD) that is
at least equal to the amount of THC.
(v) "Medical Review Officer" or "MRO" means a
properly licensed physician who receives and reviews the results of drug tests
and evaluates those results together with medical history or any other relevant
biomedical information to confirm results.
(w) "Reasonable Suspicion" means a
determination by a designated agency/entity official that an employee may not
be free of alcohol and/or illegal drugs while at work or performing assigned
duties. The designated official may be a manager, supervisor, human resources
representative, or other agency/entity staff assigned responsibility for
determining whether reasonable suspicion exists.
(x) "Safety-Sensitive Transportation Function
or Duties" means transportation-related work that requires an employee, or
selected applicant for a position with such work, to undergo drug and/or
alcohol testing, pursuant to United States Department of Transportation (US
DOT) or United States Coast Guard regulations.
(y) "Sample" or "Specimen" means urine
provided by a donor for drug testing. Where regulations governing a drug
testing program allow for the testing of some other bodily fluid or tissue,
such substance from a donor would also be considered a "sample" or
"specimen."
(z) "Split Specimen
Collection"means a drug testing collection in which urine is divided into two
(2) separate specimen bottles: a primary specimen that is tested and a split
specimen that remains unopened and available for retesting.
(aa) "Substance Abuse Professional (SAP)"
means a properly certified professional who evaluates employees who have
violated drug and/or alcohol regulations or policies and makes recommendations
concerning education, treatment, follow-up testing, and aftercare. For
federally regulated transportation positions, a Substance Abuse Professional
must meet all US DOT qualification requirements.
(bb) "Substance Abuse Testing" means
screening for the presence of alcohol or illegal drugs in accordance with this
Rule.
(cc) "Substituted Sample"
means a specimen with creatinine and specific gravity values that are so
diminished or so divergent that they are not consistent with human
urine.
(4)
Drug-free and Alcohol-free Standards:
(a) Employees are prohibited from unlawfully
manufacturing, distributing, selling, dispensing, possessing, or using a
controlled substance, marijuana, or a dangerous drug, which includes the use of
prescription medication prescribed to another.
(b) While in the workplace or otherwise in
work status, employees must be free from alcohol and illegal drugs.
(c) Employees who are legally using a drug
(or other substance) with a warning about a side effect that could
substantially impair the safe performance of assigned duties must seek and
receive authorization from a designated agency/entity official before
performing high-risk work or safety-sensitive transportation
functions.
(d) Because of federal
prohibitions, an agency/entity cannot authorize federally regulated
transportation employees to have medical marijuana in their system while
performing safety-sensitive transportation functions.
(e) Appointing authorities are responsible
for informing their staff of drug-free and alcohol-free workplace expectations,
including testing requirements, procedures, consequences for violations,
resource information on possible effects of drug use and alcohol misuse, and
available assistance.
(f)
Applicants and employees are expected to report for and complete ordered
substance abuse testing, as directed. Consequences for failing to do so, for
otherwise refusing testing, and for testing positive are outlined in Rule
478-1-.21 and Sub-Rules 478-1-.21 B-G.
(5)
Types of Testing:
The State conducts drug and alcohol testing based on the type
of work assigned to a position and safety interests. Applicants and/or
employees are subject to the types of drug and alcohol tests indicated
below:
(a) pre-employment (post-job
offer) drug testing for high-risk and federally regulated transportation
positions (See Sub-Rules 478-1-.21 B and 478-1-.21 D);
(b) random drug and/or alcohol testing for
high-risk and federally regulated transportation positions (See Sub-Rules
478-1-.21 C and 478-1-.21 D);
(c)
reasonable suspicion drug and/or alcohol testing of any employee when a
designated agency/entity official determines there is a compelling reason to
suspect an employee is not free from alcohol or illegal drugs (See Sub-Rules
478-1-.21 D and 478-1-.21 E);
(d)
post-accident drug and/or alcohol testing for federally regulated
transportation positions whose incumbent was involved in an accident, as
defined by the applicable federal operating administration (See Sub-Rule
478-1-.21 D);
(e) return-to-duty
drug and/or alcohol testing for federally regulated transportation employees
previously involved in a drug/alcohol-free workplace violation and for an
employee who returns to work following a positive alcohol test or
self-disclosure of substance abuse (See Sub-Rules 478-1-.21 A, 478-1-.21 D, and
478-2-.21 F);
(f) follow-up drug
and/or alcohol testing as directed by a Substance Abuse Professional for
employees previously involved in a drug/alcohol-free workplace violation and
for an employee who returns to work following a positive alcohol test or
self-disclosure of substance abuse (See Sub-Rules 478-1-.21 A, 478-1-.21 D, and
478-2-.21 G); and
(g) other
substance abuse testing programs, as authorized by law.
(6)
Administration of Program:
(a) Drug and alcohol testing must be
conducted in accordance with applicable federal and state laws and regulations,
and in accordance with procedures established by the DOAS Commissioner. The
DOAS Commissioner will enter into whatever contracts are necessary to provide
for testing and verification services. These testing programs shall give due
consideration to security of sample collection, chain of custody requirements,
accuracy of testing, and confidentiality of results.
(b) Expense of Substance Abuse Testing:
The expense of substance abuse testing is the responsibility of
the agency/entity. If a donor requests that a drug test sample be submitted for
separate analysis, the appointing authority may seek payment or reimbursement
of all or part of the cost of the separate analysis from the donor, if the
appointing authority has a written policy which specifies the donor's
responsibility to pay for the separate analysis. However, the appointing
authority cannot make payment, reimbursement, or ability to pay a condition for
performing the separate analysis. The appointing authority is responsible for
ensuring that the separate analysis is performed in a timely manner.
(c) Work Time:
1. All time necessary for an employee to
undergo substance abuse testing is considered work time, including any travel
time to and from the collection or testing facility.
2. Applicants taking pre-employment drug
tests before they start employment are not paid, and the time used for drug
testing is not considered work time.
(d) Substance Abuse Test Results - Access and
Confidentiality:
1. Substance abuse test
results are considered confidential and not subject to public disclosure. Any
electronic transmission of substance abuse test results must, at a minimum, be
encrypted or password protected.
2.
Access is limited to staff with a need to know to administer this Rule or
comply with law.
3. Staff of DOAS
and the agency/entity ordering substance abuse testing have access to results
as needed to administer the testing program and facilitate appropriate
employment action.
4. Staff of an
agency/entity currently employing an individual who did not successfully
complete testing ordered by another agency/entity pursuant to this Rule has
access to results as needed to administer appropriate employment
action.
(e) Situations
not expressly covered in this Rule will be addressed in a manner comparable to
those in US DOT regulations.
(7)
Substance Abuse Testing
Refusal:
(a) Applicants and employees
who are directed to undergo substance abuse testing and subsequently refuse
will not be employed or remain employed with the State and are disqualified
from state employment for a period of two (2) years from the date of
refusal.
(b) An applicant who
declines an offer of employment for reasons unrelated to substance abuse
testing will not be deemed to have refused testing.
(c) An individual who expressly refuses to
undergo directed substance abuse testing, engages in conduct that willfully
obstructs the testing process, or otherwise fails to fully cooperate with the
collection or testing process will be deemed to have refused testing.
(d) An individual who fails to appear for
substance abuse testing, as directed, or who fails to remain at the site until
the collection or testing process is complete, will be deemed to have refused
testing.
(e) An individual who
fails to provide adequate urine (or other substance authorized by applicable
federal regulation) for drug testing will be deemed to have refused testing,
unless the MRO finds there was a valid medical reason.
(f) An individual who fails to provide
adequate breath or saliva (or blood for United States Coast Guard-regulated
post-accident testing) for alcohol testing will be deemed to have refused
testing, unless the evaluating physician finds there was a valid medical
reason.
(g) An individual who is
found to have brought a clean urine sample or substitute to the collection site
or admits to having tampered with her/his specimen will be deemed to have
refused testing.
(h) If the testing
laboratory and the Medical Review Officer (MRO) determine that the urine sample
of a donor is an adulterated or substituted sample, the donor will be deemed to
have refused testing.
(8)
Observed Collection:
(a) An observed drug testing collection may
be conducted only by a representative of the collection facility or a
subcontractor who is the same gender as the gender with which the donor
identifies, which may be the same as, or different from, the donor's sex
assigned at birth.
(b) Collection
Site Criteria for Observed Collection:
1. A
collection site representative may recommend observed collection when:
(i) a sample temperature is outside the
acceptable range of 90 through 100 degrees Fahrenheit,
(ii) the sample has an unusual appearance,
or
(iii) the donor's behavior or
appearance is suspicious during the collection steps.
2. A sample will not be collected as an
observed collection unless the necessity for it has been confirmed by a
supervisor of the site representative or other appropriate collection site
personnel.
3. Any other
circumstances require the approval of the appointing authority.
(c) An appointing authority may
direct a sample to be collected under direct observation if the appointing
authority has reason to believe that the donor may attempt to alter or falsify
the sample, or as otherwise provided in this Rule.
(d) Federally regulated return-to-duty and
follow-up test collections will be observed.
(9)
On-Site Drug Testing:
(a) Eligibility:
Upon establishing a written policy, an appointing authority may
conduct on-site drug testing according to the provisions of this Rule for any
type of drug testing except testing of federally regulated transportation
employees.
(b) On-site
collection must be performed with due regard for privacy in a manner designed
to prevent substitution or contamination of the specimen.
(c) Specimens will be collected and
documented in a manner that ensures chain of custody.
(d) On-site collection may be conducted by
any of the following: physician, physician assistant, nurse, person certified
or employed by a laboratory certified by the National Institute on Drug Abuse,
the College of American Pathologies, or the Georgia Department of Community
Health, or person certified or employed by a collection company.
(e) Testing devices used for on-site drug
testing will meet applicable United States Food and Drug Administration
requirements.
(f) Observed
Collection:
If a donor demonstrates behavior that meets the requirements
for an observed collection as described in Section (8) of this Rule, the donor
will be required to report to an approved collection site to have the observed
collection performed by a representative of the collection facility or an
approved subcontractor who is the same gender with which the donor identifies,
which may be the same as or different from the donor's sex assigned at
birth.
(g) On-Site Test
Results:
(i) On-site negative results are not
subject to further analysis. The collection device should be disposed of
immediately in the proper manner as described by the manufacturer. The Custody
and Control form (CCF) should be retained by the official conducting the test
for a minimum of 30 days.
(ii) The
appointing authority must report the results and the CCF information in a
method and timeframe established by the Department of Administrative
Services.
(iii) Non-negative
results must be submitted under complete chain of custody to a Substance Abuse
and Mental Health Services Administration certified laboratory for confirmation
testing including re-screen, gas chromatography/mass spectrometry confirmation,
and forwarded for Medical Review Officer (MRO) verification and
release.
(h) The
appointing authority may not take dismissal action based on an on-site test
result until a certified laboratory and the MRO have confirmed, verified, and
released the test result.
(i) The
MRO must adhere to the reporting and contact procedure in Section (10) of this
Rule.
(10)
Medical
Review Officer (MRO) Review Procedure:
(a) Laboratory Reports:
The testing laboratory must forward the results of all drug
tests to the MRO for verification and release.
1. Negative Results:
The MRO will verify and release negative results of drug tests
to the appointing authority as soon as practicable.
2. Non-negative Results:
Laboratory reports indicating the presence of an illegal
drug(s), adulteration, substitution, or an invalid test result will be retained
by the MRO until a final determination is reached. Such information is
confidential and will be available only to the MRO or designee and the affected
donor during the review process. Positive laboratory reports will be reviewed
and determinations of legal or illegal usage will be made in accordance with
procedures established by the MRO.
(b) Contact Procedure:
The MRO or designee will, upon receipt of a positive,
adulterated, substituted, or invalid laboratory test result, attempt to contact
the donor at the phone numbers indicated on the CCF/drug testing form to
determine whether the donor wants to discuss the result. The MRO will attempt
to determine if there is an alternative medical explanation for the test
result.
1. If the test result was
determined invalid, the MRO will cancel the test and, after speaking with
donor, make a recommendation for whether to require another collection under
direct observation. If there is no contact with the donor, observed collection
will be recommended.
2. If the
donor expressly refuses to discuss with the MRO the results of a drug test,
declines the opportunity to provide an explanation of the results, or admits to
use of an illegal drug(s), adulteration, or substitution, the MRO, without
further action or review, will report the test result as positive or a refusal,
as applicable.
3. If a donor is
unable to provide an alternative medical explanation for the presence of an
illegal drug(s), the MRO, after appropriate review, will report the test result
as positive for an illegal drug(s).
4. If after reasonable efforts the MRO or
designee is unable to directly contact the donor, the MRO or designee will
contact the appropriate appointing authority. The appointing authority or
designee will attempt to contact and inform the donor that s/he must personally
contact the MRO as soon as possible and that the MRO may report the test result
as positive or a refusal, as applicable, if not contacted within 72 hours. The
appointing authority is to notify the MRO when the message was delivered to the
donor.
5. An appointing authority
or designee who is unable to contact the donor within two (2) business days of
the initial attempt will so notify the MRO. The MRO will deem the donor to have
tested positive or refused testing, as applicable.
(c) Final Determination:
The decision of the MRO regarding the verification of a
positive, adulterated, or substituted drug test result will be final.
(11)
Substance
Abuse Testing Results:
(a) Rejected or
Unsuitable Sample:
A donor whose sample is rejected or determined to be unsuitable
by the testing laboratory is subject to retesting as indicated in Sub-Rules
478-1-.21 B through 478-1-.21 G. The retesting may be conducted as an observed
collection at the discretion of the appointing authority or as required by
federal regulations for return-to-duty and follow-up testing.
(b) Adulterated or Substituted Sample:
A donor whose sample is determined by the MRO to be adulterated
or substituted is considered to have refused substance abuse testing.
(c) Negative Result:
1. Upon receiving a negative test result, the
applicant/employee fulfills the applicable testing condition of
employment.
2. Negative drug test
results may be utilized by the appointing authority that ordered the testing
for any appropriate purpose for a period of 30 calendar days after the date the
test was administered.
(d) Positive Result:
1. An applicant/employee who tests positive
for alcohol or use of an illegal drug(s) is subject to disciplinary action and
disqualification as outlined in Sub-Rules 478-1-.21 A through 478-1-.21 G.
2. A limited exception is
available when a drug test result is positive for marijuana and the MRO notated
the result to indicate that the donor provided proof of eligibility to lawfully
use medical marijuana.
(i) This exception
gives an appointing authority the option to order and pay for an assessment by
an occupational healthcare professional of the employee's ability to safely
perform assigned duties. Based on the assessment, the appointing authority
would determine appropriate employment action.
(ii) The exception is not available for
federally regulated testing or for pre-employment testing for a high-risk
position.
(12)
Dismissal of Classified
Employees:
(a) When a classified
employee is dismissed from employment for refusing testing or for having a
positive drug or alcohol test, any adverse action taken by the appointing
authority must comply with the provisions of Rule
478-1-.26, Adverse Action for
Classified Employees.
(b) When this
Rule requires immediate dismissal, the appointing authority is to process the
action in accordance with Section (11) of Rule 478-1 .26, Adverse Action for
Classified Employees.
(c) A
classified employee who tests positive for alcohol or an illegal drug(s) is
considered to have engaged in misconduct. A classified employee who refuses
ordered testing is considered to have engaged in insubordination and
misconduct.
(13)
Appeals:
(a) Dismissal actions
can be appealed only by classified employees, as outlined in Rule
478-1-.26, Adverse Actions for
Classified Employees, and Rule
478-1-.27, Appeals and Hearings for
Classified Employees.
(b) An
applicant/employee who was deemed to have refused substance abuse testing may
request a review of the two (2) year disqualification if the applicant/employee
does not believe that the circumstances described in Section (7) of this Rule
were applicable in her/his situation.
1. The
request must be submitted in writing to the DOAS Commissioner or designee. It
must be postmarked or delivered within ten (10) business days from the date of
the notice of the disqualification.
2. The request must identify at a minimum:
(i) the date on which the applicant/employee
was directed to report for testing;
(ii) the agency that directed the
applicant/employee for testing;
(iii) why the employee/applicant disputes the
refusal determination; and,
(iv)
any supporting documentation.
3. The DOAS Commissioner or designee will
consider all requests for review and may request additional information
necessary to reach a decision.
4.
The decision of the DOAS Commissioner or designee is final.
O.C.G.A.
§§
45-20-3, 45-20-3.1, 45-20-4.