RELATES TO: KRS 222.215
NECESSITY, FUNCTION, AND CONFORMITY: KRS 222.215 requires the
cabinet to promulgate administrative regulations to implement
employer-facilitated access to substance use disorder treatment for employees
who screen positive during an employment-related drug screening. This
administrative regulation establishes a voluntary program in which employers
may facilitate employee access to substance use disorder treatment, rather than
terminate or refuse hire, and sets criteria for that program.
Section 1. Definitions.
(1) "Cabinet" means the Cabinet for Health
and Family Services.
(2) "Employer"
means any employer that agrees to participate in the Voluntary Employer
Substance Use Program.
Section
2. Voluntary Employer Substance Use Program (VESUP) policy.
(1) An employer that elects to participate in
VESUP shall have the following elements written in their workplace drug and
alcohol policy:
(a) Policy rationale and goals
that include:
1. Reason for policy;
2. Intended outcomes of the policy;
and
3. How and with whom the policy
was developed;
(b)
Expectations and compliance elements that include:
1. When and where the policy
applies;
2. Employee positions the
policy applies to;
3. Expected
employee behavior; and
4.
Prohibited behaviors and substances;
(c) Drug screening procedures and guidelines,
including:
1. A list of screened
substances;
2. Screening facilities
approved by the cabinet;
3. Number
of times an employee shall be screened, including minimums and maximums;
and
4. Screening confidentiality
and privacy protocols;
(d) Resources for evidence-based substance
use disorder prevention; and
(e) A
process for identifying licensed substance use disorder treatment
providers.
(2) An
employer's VESUP policy shall be accessible upon request to all employees and
the cabinet.
(3) Employee
compliance with the employer's VESUP policy shall be a condition of
employment.
Section 3.
Employee Participation in Substance Use Disorder Treatment.
(1) Employers participating in the VESUP
shall require employee participation in licensed substance use disorder
treatment services as a condition of employment to work within their area of
expertise or professional licensure as applicable if:
(a) An employee screens positive during an
employment-related drug screening; and
(b) A biopsychosocial clinical assessment
performed by a licensed substance use disorder treatment provider determines
the need for substance use treatment.
(2) If a licensed substance use disorder
treatment provider determines via biopsychosocial clinical assessment that
substance use disorder treatment is not necessary, the employee shall comply
with the recommendations deemed appropriate by the clinical assessment as a
condition of employment.
(3) An
employee identified in subsection (1) of this section shall follow the
treatment plan as written by the licensed substance use disorder treatment
provider.
Section 4.
Employer Participation in Substance Use Disorder Treatment.
(1) An employer shall agree to allow the
employee to follow the treatment plan written by a licensed substance use
disorder treatment provider as described in Section 3(3) of this administrative
regulation.
(2) An employer shall
not penalize an employee for compliance with the treatment plan described in
Section 3(3) of this administrative regulation.
Section 5. Records.
(1) An employer shall secure all records and
information concerning an employee's substance use screening and
treatment.
(2) Records as specified
in subsection (1) of this section shall include:
(a) Results of employee drug
screens;
(b) Documentation of
employee participation and compliance in substance use disorder treatment
services.
(3) Records
specified in this section shall be maintained:
(a) Separately from the employee's personnel
file;
(b) In a secure location;
and
(c) Disposed of in accordance
with all state and federal laws regarding protected health
information.
(4) Records
specified in this section shall be disclosed in accordance with KRS
222.215(6)(e).
Section
6. Program Requirements.
(1) An
employee that violates the employer workplace drug and alcohol policy by
screening positive during an employment-related drug screening, rather than
being terminated or refusing hire, shall have the option to receive services
from a licensed substance use disorder treatment provider for:
(a) An initial comprehensive biopsychosocial
clinical assessment using a multidimensional assessment tool, that complies
with the most current edition of the American Society of Addiction Medicine
(ASAM) criteria to determine the appropriate level of care in accordance with
908
KAR 1:370, Section 18; and
(b) If deemed appropriate, creation of a
written treatment plan pursuant to
908
KAR 1:370, Section 19.
(2) Employees specified in subsection (1) of
this section, that elect to participate in this program, shall provide their
employer with signed consent authorizing the employer to receive documentation
confirming employee participation and compliance with recommendations of the
clinical assessment.
(3) Employees
specified in subsection (1) of this section, shall be informed of all
FDA-approved options to treat substance use disorder from the employer or the
cabinet when referred by the employer.
Section 7. Referral Information. Employers
may find the following information at
http://dbhdid.ky.gov/:
(1) A list of some of the licensed substance
use disorder treatment providers available;
(2) Employer education on addressing
substance use in the workplace; and
(3) Screening facilities approved by the
cabinet.