|Legal Opinion: Employee Safety Measures public.wpd|
Text of Document: October 1, 2002
Re: Employee safety measures
Your letter dated September 10, 2002, to Sid Hemsley has been referred to me for reply.
First of all, relative to a drug testing policy for employees, there is no requirement that the Town have a drug testing policy for general employees. The federal Omnibus Transportation Employee Testing Act of 1991 requires that municipal employees that are required to have a commercial driver’s license and who drive vehicles with a gross weight of more than 26,000 pounds, trailers with a gross weight of more than 10,000 pounds, vehicles designed to transport more than 15 people, or any vehicle with placards that hauls hazardous material be tested for drug use. Similar testing requirements apply to certain gas utility employees. ( 49 U.S.C.A. § 31306; 49 C.F.R. Part 40, 199, 382; T.C.A. § 55-50-401, et seq.). For other employees there is no legal requirement that there be a testing program. Tennessee’s Drug Free Workplace Act (T.C.A. § 50-9-101, et seq.) authorizes, but does not require, testing programs for general employees. Municipalities that adopt a program that conforms to the Drug Free Workplace Act are eligible for reduced workers’ compensation insurance premiums if they purchase their insurance from a private carrier. There is also a rebuttable presumption provided for in the law when an employee is hurt on the job and tests positive for drugs that the injury arose out of the drug use rather than the job. In this situation, the employee would not be eligible for workers’ compensation benefits unless he or she overcame the presumption.
It is my understanding that the Town does not have employees for whom drug testing is mandatory under the noted federal laws. Whether the Town should have a testing policy is therefore a policy decision to be made by the Board. If the Board decides not to have a drug testing policy, you should be aware that this does not prevent the Town from dealing with the effects of drug usage as it affects job performance. Excessive absences, continuing mistakes, failure to do the job, sleeping on the job, and other examples of poor job performance can be dealt with as they always have been.
Relative to the Occupational Safety and Health Act (OSHA) questions, state law requires employers, including municipalities, to provide a workplace “free from recognized hazards that are causing or likely to cause death or serious injury or harm to ... employees.” (T.C.A. § 50-3-105(1)). Municipalities may elect to be treated as private employers or to establish their own program. If a municipality establishes its own program, civil penalties will not be imposed for violations. The state Department of Labor merely inspects for any noncompliance and reports to the Governor and General Assembly. ( T.C.A. §§ 50-3-910 and 911). If the Town decides to be treated as a private employer, a civil penalty of up to $7,000.00 per day can be assessed for violations. (T.C.A. §§ 50-3-403 through 406). Therefore, it might be beneficial for the Town to have its own program. You sent two (2) ordinances establishing an OSHA program, however, and you need only one (1). The shorter ordinance should be sufficient if it meets requirements of the Department of Labor. See T.C.A. § 50-3-910.
With reference to the infectious disease control policy, 29 C.F.R. § 1910.1030 requires all employers to adopt a written exposure control plan. The plan must include a universal precautions policy and requires employers to provide protective equipment among other requirements. The ordinance you sent appears to meet the requirements of the federal rule although it is more comprehensive than a small town with only a few employees needs. There is nothing in the federal rules that requires the policy to be adopted by ordinance, so a resolution should work as well and is more appropriate since this is an administrative matter that does not apply to the general populace and is not done for punitive reasons.
I understand that the Town has only a few employees that are exposed on any regular basis to possible infectious diseases. These are employees that do weedeating and occasionally fling needles that have been used for drug injections. The Town should provide these employees with protective clothing and/or equipment to attempt to eliminate the risk that a needle will stick them or fellow workers close by. The Town should also make sure they wear or use the protective clothing or equipment. The Town is obligated under the noted regulation, and the proposed ordinance, to provide hepatitis B vaccinations and follow-up after an exposure.
There is some surplusage in the proposed ordinance. For example, Section 4-502 refers to employees that the Town does not have, such as paramedics, occupational nurses, etc. Most of the substance of the proposed ordinance, however, is required by the federal rule. And although the Town does not have employees that are exposed to blood or bodily fluids on a regular basis as part of their jobs, there is always the possibility that someone could come bleeding into city hall or that workers outside could get cut or be at the scene of an accident where there is blood and other fluids. Employees should be trained in how to handle these possibilities from an infectious disease perspective, as the proposed policy requires.
To summarize, there is no legal requirement that the Town have a drug testing program for general employees. Whether the Town wants to have one is a policy decision to be made by the Board. The Town should adopt its own OSHA program unless it wants to be treated as a private employer. The Town would need to adopt only one (1) ordinance to do this. If the Town wants to be treated as a private employer, there is no need to do anything relative to OSHA. Federal rules require employers to have an infectious disease control policy, but a resolution would work as well as an ordinance.
I hope this is helpful. If we may be of further assistance, please contact us.