Kentucky Encourages Employer Participation in Employee Substance Use Disorder Treatment

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Kentucky also recently stepped into the drug testing arena by passing Senate Bill 191 which was signed by Governor Andy Beshear on April 24th. As noted in the bill’s text, the point of the legislation is to “foster economic opportunities for individuals with histories of substance use disorder.”[1] The employer-related provision of the law will take effect on July 23, 2020.
Essentially the legislation creates incentives for employers to encourage participation in treatment programs related to substance use. To participate, employers need to:
  • Develop a written drug policy, protocol or procedure in line with the law’s requirements;
  • Require employee participation in treatment services as a condition of employment;
  • Retain the right to discipline or terminate an employee who does not comply with treatment or the workplace policy;
  • Comply with any administrative regulations that will be created by the Cabinet for Health and Family Services and the Office of Drug Control Policy; and
  • Secure all records and information concerning an employee’s drug test results and treatment updates in a confidential manner (i.e., separate from the personnel file).
Employers may also pay for all or part of the treatment and accept a voluntary wage assignment from the employee to pay for part of the treatment.
If employers comply with these requirements, they receive protections against liability in a civil action alleging negligent hiring, negligent retention or negligent supervision as a result of an employee’s action tied to his or her substance use disorder. The only exceptions to this protection is if the employer did not comply with the above-stated requirements, or if the employer knew or should have known that the employee had a recurrence of his or her substance use disorder and was under the influence at the time of the negligent act.
Such participation or non-participation in a substance use treatment program is also not admissible as evidence against the employer, but may be used to address liability, mitigation of damages or as evidence of the employer’s noncompliance.
[1] For the purposes of this legislation, employee is defined as someone who has failed an employment-related drug test and employer means someone who elects to employ an individual who has failed such a drug test.