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RULE §554.423Model Drug Testing Policy

The Texas Department of Human Services (DHS) is required to provide a model drug testing policy to nursing facilities under the Health and Safety Code, §242.050. A nursing facility is not required to perform drug testing on its employees or applicants for employment. Although this policy only covers drugs, coverage of alcohol may be added. Before implementing any drug testing policy, including the following model policy, DHS recommends that a facility discuss the policy with its attorney.

  (1) Policy.

    (A) (NURSING FACILITY NAME) has a vital interest in maintaining a safe, healthy, and efficient working environment. Being under the influence of a drug on the job poses serious safety and health risks to the user, co-workers, and residents. The use, sale, purchase, transfer, or possession of an illegal drug in the workplace poses unacceptable risks for safe, healthy, and efficient operations.

    (B) (NURSING FACILITY NAME) has the obligation to maintain a safe, healthy and efficient workplace for all of its employees and residents, and to protect the facility's property, information, equipment, operations, and reputation.

    (C) (NURSING FACILITY NAME) recognizes its obligation to its residents to provide services that are free of the influence of illegal drugs and endeavors through this policy to provide drug-free services.

    (D) (NURSING FACILITY NAME) complies with federal and state rules, regulations, or laws that relate to the maintenance of a workplace free from illegal drugs.

    (E) All employees are required to abide by the terms of this policy and to notify management of any criminal drug statute conviction for a violation that occurred in the workplace no later than five days after such conviction.

  (2) Purpose. This policy outlines the goals and objectives of (NURSING FACILITY NAME'S) drug testing program and provides guidance to supervisors and employees concerning their responsibilities for carrying out the program.

  (3) Scope. This policy applies to all departments, all employees, and all job applicants. The term employee includes contracted employees.

  (4) Definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

    (A) Facility premises--All property of (NURSING FACILITY NAME) including, but not limited to, the offices, facilities, and surrounding areas on (NURSING FACILITY NAME)-owned or -leased property, parking lots, and storage areas. The term also includes (NURSING FACILITY NAME)-owned or -leased vehicles and equipment.

    (B) Drug testing--The scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a drug.

    (C) Illegal drug--Any drug that is not legally obtainable. Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines, and phencyclidine (PCP).

    (D) Legal drug--Any prescribed drug or over-the-counter drug that has been legally obtained and is being used for the purpose for which it was prescribed or manufactured.

    (E) Reasonable belief--A belief based on facts sufficient to lead a prudent person to conclude that a particular employee is unable to perform his or her job duties due to drug impairment. Such inability to perform may include, but not be limited to, decreases in the quality or quantity of the employee's productivity, judgment, reasoning, concentration and psychomotor control, and marked changes in behavior. Accidents, deviations from safe working practices, and erratic conduct indicative of impairment are examples of "reasonable belief" situations.

    (F) Under the influence--A condition in which a person is affected by a drug in any detectable manner. The symptoms of influence are not confined to those consistent with misbehavior or to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of being under the influence can be established by a professional opinion; a scientifically valid test, such as urinalysis or blood analysis; and in some cases by the opinion of a layperson.

  (5) Education.

    (A) Management personnel are to be trained to:

      (i) detect the signs and behavior of employees who may be using drugs in violation of this policy; and

      (ii) intervene in situations that may involve violations of this policy.

    (B) Employees are to be informed of the provisions of this policy.

  (6) Prohibited activities.

    (A) Legal drugs. (NURSING FACILITY NAME) reserves the right at all times to judge the effect that a legal drug may have on an employee's job performance and to restrict the employee's work activity or presence at the workplace accordingly.

    (B) Illegal drugs. The use, sale, purchase, transfer, or possession of an illegal drug by any employee while on (NURSING FACILITY NAME) premises or while performing (NURSING FACILITY NAME) business is prohibited.

  (7) Discipline.

    (A) Any employee who possesses, distributes, sells, attempts to sell, or transfers illegal drugs on (NURSING FACILITY NAME) premises or while on (NURSING FACILITY NAME) business will be subject to immediate discharge.

    (B) Any employee found through drug testing to have in his or her body a detectable amount of an illegal drug will be subject to discipline up to and including discharge. An employee may be offered a one-time opportunity to enter and successfully complete a rehabilitation program, approved by (NURSING FACILITY NAME), at the employee's expense. During rehabilitation, the employee will be subject to unannounced drug testing. Upon return to work from rehabilitation, the employee may be subject to unannounced drug testing at (NURSING FACILITY NAME) expense for a period of 12 months. Any employee whose test is confirmed as positive during or following rehabilitation will be subjected to immediate discharge.

  (8) Drug testing for job applicants.

    (A) All applicants for employment, including applicants for part-time and seasonal positions and applicants who are former employees, are subject to drug testing.

    (B) If an applicant refuses to take a drug test, or if evidence of the use of illegal drugs by an applicant is discovered, either through testing or other means, the pre-employment process will be terminated.

    (C) An applicant must pass the drug test to be considered for employment.

    (D) An applicant will be provided written notice of this policy and, by signature, will be required to acknowledge receipt and understanding of the policy before being tested.

  (9) Drug testing of employees.

    (A) (NURSING FACILITY NAME) will notify employees of this policy by:

      (i) providing them with a copy of the policy and obtaining written acknowledgement that the policy has been received and read.

      (ii) announcing the policy in written communications and making presentations at employee meetings.

    (B) (NURSING FACILITY NAME) will perform drug testing:

      (i) of any employee who exhibits "reasonable belief" behavior;

      (ii) of each employee who has direct contact with residents annually;

      (iii) of any employee who is subject to drug testing pursuant to federal or state rules, regulations, or laws;

      (iv) on a random basis of any employee.

    (C) An employee's consent to submit to drug testing is required as a condition of employment and the employee's refusal to consent may result in disciplinary action, including discharge, for a first refusal or any subsequent refusal.

    (D) An employee who is tested in a "reasonable belief" situation may be suspended pending receipt of written test results and inquiries that may be required.

  (10) Appeal of a drug test result.

    (A) An applicant or employee whose drug test was positive will have an opportunity to explain why the positive finding could have resulted from a cause other than drug use. (NURSING FACILITY NAME) will judge whether the employee's explanation merits further inquiry.

    (B) An applicant or employee whose drug test is reported positive will be offered the opportunity to:

      (i) obtain and independently test, at their expense, the remaining portion of the urine specimen that yielded the positive result; and

      (ii) obtain the written test result and submit it to an independent medical review, at their expense.

    (C) During an appeal and any resulting inquiries, the pre-employment selection process for an applicant will be placed on hold, and the employment status of an employee may be suspended. An employee who is suspended pending appeal may use any available annual leave to remain in an active pay status. If the employee has no annual leave or chooses not to use it, the suspension will be without pay.

  (11) Confidentiality. All information related to drug testing or the identification of persons as users of drugs will be protected by (NURSING FACILITY NAME) as confidential unless otherwise required by law or overriding public health and safety concerns, or authorized in writing by the persons in question.

Source Note: The provisions of this §554.423 adopted to be effective August 1, 2002, 27 TexReg 6052; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871

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