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Ark. Code Ann. § 11-14-101 to 11-14-112

Ark. Code Ann. § 11-14-101 to 11-14-112 – Voluntary Laws Affecting Drug and Alcohol Testing

11-14-101.  Legislative intent.

  (a) It is the intent of the General Assembly to promote drug-free workplaces in order that employers in this state may be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from drug or alcohol abuse by employees. It is further the intent of the General Assembly that drug and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse face the risk of unemployment and the forfeiture of workers' compensation benefits.

(b) If an employer implements a drug-free workplace program in accordance with this chapter that includes notice, education, and procedural requirements for testing for drugs and alcohol pursuant to rules developed by the Workers' Health and Safety Division of the Workers' Compensation Commission, the covered employer may require the employee to submit to a test for the presence of drugs or alcohol, and if a drug or alcohol is found to be present in the employee's system at a level prescribed by statute or by rule adopted pursuant to this chapter as excessive, the employee may be terminated and may be precluded from workers' compensation medical and indemnity benefits. However, a drug-free workplace program must require the covered employer to notify all employees that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in the employee's body, and if an injured employee refuses to submit to a test for drugs or alcohol, the employee may be precluded from workers' compensation medical and indemnity benefits. In the event of termination, an employee shall be entitled to contest the test results before the Department of Labor.

11-14-102.  Definitions.

  As used in this chapter, unless the context otherwise requires:

   (1) "Alcohol" has the same meaning in this chapter as when used in the federal regulations describing the procedures used for the testing of alcohol by programs operating pursuant to the authority of the Department of Transportation, currently compiled at 49 C.F.R. Part 40;

   (2) "Alcohol test" means an analysis of breath or blood or any other analysis which determines the presence and level or absence of alcohol as authorized by the Department of Transportation in its rules and guidelines concerning alcohol testing and drug testing;

   (3) "Chain of custody" refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances and providing for accountability at each stage in handling, testing, and storing specimens and reporting test results;

   (4) "Confirmation test", "confirmed test", or "confirmed drug or alcohol test" means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity, and quantitative accuracy;

   (5) "Covered employer" means a person or entity that employs a person, is covered by the Workers' Compensation Law, § 11-9-101 et seq., maintains a drug-free workplace pursuant to this chapter, and includes on the posting required by § 11-14-105 a specific statement that the policy is being implemented pursuant to the provisions of this chapter. This chapter shall have no effect on employers who do not meet this definition;

   (6) "Director" means the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission;

   (7) "Division" means the Workers' Health and Safety Division of the Workers' Compensation Commission;

   (8) "Drug" means any controlled substance subject to testing pursuant to drug testing regulations adopted by the United States Department of Transportation. A covered employer shall test an individual for all such drugs in accordance with the provisions of this chapter. The director may add additional drugs by rule in accordance with § 11-14-111;

   (9) "Drug or alcohol rehabilitation program" means a service provider that provides confidential, timely and expert identification, assessment, and resolution of employee drug or alcohol abuse;

   (10) "Drug test" or "test" means any chemical, biological, or physical instrumental analysis administered by a laboratory authorized to do so pursuant to this chapter for the purpose of determining the presence or absence of a drug or its metabolites pursuant to regulations governing drug testing adopted by the Department of Transportation or such other recognized authority approved by rule by the director;

   (11) "Employee" means any person who works for salary, wages, or other remuneration for a covered employer;

   (12)  (A) "Employee assistance program" means an established program capable of:

         (i) Providing expert assessment of employee personal concerns;

         (ii) Confidential and timely identification services with regard to employee drug or alcohol abuse;

         (iii) Referrals of employees for appropriate diagnosis, treatment, and assistance; and

         (iv) Follow-up services for employees who participate in the program or require monitoring after returning to work.

      (B) If, in addition to the above activities, an employee assistance program provides diagnostic and treatment services. These services shall in all cases be provided by the program;

   (13) "Employer" means a person or entity that employs a person and that is covered by the Workers' Compensation Law, § 11-9-101 et seq.;

   (14) "Initial drug or alcohol test" means a procedure that qualifies as a screening test or initial test pursuant to regulations governing drug or alcohol testing adopted by the Department of Transportation or such other recognized authority approved by rule by the director;

   (15) "Job applicant" means a person who has applied for a position with a covered employer, who has been offered employment conditioned upon successfully passing a drug or alcohol test and who may have begun work pending the results of the drug or alcohol test;

   (16) "Medical review officer" means a licensed physician, pharmacist, pharmacologist or similarly qualified individual employed with or contracted with a covered employer who:

      (A) Has knowledge of substance abuse disorders, laboratory testing procedures, and chain of custody collection procedures;

      (B) Verifies positive, confirmed test results; and

      (C) Has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information;

   (17) "Reasonable-suspicion drug testing" means drug or alcohol testing based on a belief that an employee is using or has used drugs or alcohol in violation of the covered employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon:

      (A) Observable phenomena while at work such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of a drug or alcohol;

      (B) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;

      (C) A report of drug or alcohol use provided by a reliable and credible source;

      (D) Evidence that an individual has tampered with a drug or alcohol test during employment with the current covered employer;

      (E) Information that an employee has caused, contributed to or been involved in an accident while at work; or

      (F) Evidence that an employee has used, possessed, sold, solicited, or transferred drugs or used alcohol while working or while on the covered employer's premises or while operating the covered employer's vehicle, machinery, or equipment;

   (18) "Safety-sensitive position" means a position involving a safety-sensitive function pursuant to regulations governing drug or alcohol testing adopted by the United States Department of Transportation. For drug-free workplaces, the director is authorized to promulgate rules expanding the scope of "safety-sensitive position" to cases where impairment may present a clear and present risk to co-workers or other persons. "Safety-sensitive position" means, with respect to any employer:

      (A) A position in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to:

         (i) Carry a firearm;

         (ii) Perform life-threatening procedures;

         (iii) Work with confidential information or documents pertaining to criminal investigations; or

         (iv) Work with controlled substances; or

      (B) A position in which a momentary lapse in attention could result in injury or death to another person; and

   (19) "Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites.

11-14-103.     Applicability.
  (a) This chapter applies to a drug-free workplace program implemented pursuant to rules adopted by the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission.

(b) The application of the provisions of this chapter is subject to the provisions of any applicable collective bargaining agreement.

(c) Nothing in the program authorized by this chapter is intended to authorize any employer to test any applicant or employee for alcohol or drugs in any manner inconsistent with federal constitutional or statutory requirements, including those imposed by the Americans with Disabilities Act and the National Labor Relations Act.

11-14-104.  Testing for drugs or alcohol authorized -- Conditions for testing -- Effect of failure to comply.

  (a)  (1) A covered employer may test a job applicant for alcohol or for any drug described in § 11-14-102. Provided, for public employees such testing shall be limited to the extent permitted by the Arkansas Constitution and the United States Constitution. A covered employer may test an employee for any drug and at any time as set out in § 11-14-106. An employee who is not in a safety-sensitive position may be tested for alcohol only when the test is based upon reasonable suspicion. An employee in a safety-sensitive position may be tested for alcohol use at any occasion described in §§ 11-14-102 -- 11-14-105, inclusive.

   (2) In order to qualify as having established a drug-free workplace program which affords a covered employer the ability to qualify for the discounts provided under § 11-14-112, all drug or alcohol testing conducted by covered employers shall be in conformity with the standards and procedures established in this chapter and all applicable rules adopted pursuant to this chapter. If a covered employer fails to maintain a drug-free workplace program in accordance with the standards and procedures established in this section and in applicable rules, the covered employers shall not be eligible for discounts under § 11-14-112. All covered employers qualifying for and receiving discounts provided under § 11-14-112 must be reported annually by the insurer to the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission.

(b) The director shall adopt a form pursuant to rule-making authority, which form shall be used by the employer to certify compliance with the provisions of this chapter. Substantial compliance in completing and filing the form with the director shall create a rebuttable presumption that the employer has established a drug-free workplace program and is entitled to the protection and benefit of this chapter. Prior to granting any premium credit to an employer pursuant to § 11-14-112, all insurers shall obtain the form from the employer.

(c) It is intended that any employer required to test its employees pursuant to the requirements of any federal statute or regulation shall be deemed to be in conformity with this section as to the employees it is required to test by those standards and procedures designated in that federal statute or regulation. All other employees of the employer shall be subject to testing as provided in this chapter in order for the employer to qualify as having a drug-free workplace program.

11-14-105.  Written policy statement.

  (a) One (1) time only prior to testing, a covered employer shall give all employees and job applicants for employment a written policy statement that contains:

   (1) A general statement of the covered employer's policy on employee drug or alcohol use, which must identify:

      (A) The types of drug or alcohol testing an employee or job applicant may be required to submit to, including reasonable-suspicion drug or alcohol testing or drug or alcohol testing conducted on any other basis; and

      (B) The actions the covered employer may take against an employee or job applicant on the basis of a positive confirmed drug or alcohol test result;

   (2) A statement advising the employee or job applicant of the existence of this section;

   (3) A general statement concerning confidentiality;

   (4) Procedures for employees and job applicants to confidentially report the use of prescription or nonprescription medications to a medical review officer after being tested, but only if the testing process has revealed a positive result for the presence of alcohol or drug use;

   (5) The consequences of refusing to submit to a drug or alcohol test;

   (6) A representative sampling of names, addresses and telephone numbers of employee assistance programs and local drug or alcohol rehabilitation programs;

   (7) A statement that:

      (A) An employee or job applicant who receives a positive confirmed test result may contest or explain the result to the medical review officer within five (5) working days after receiving written notification of the test result;

      (B) If an employee's or job applicant's explanation or challenge is unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the covered employer; and

      (C) A person may contest the drug or alcohol test result pursuant to rules adopted by the Workers' Health and Safety Division of the Workers' Compensation Commission;

   (8) A statement informing the employee or job applicant of the employee's responsibility to notify the laboratory of any administrative or civil action brought pursuant to this section;

   (9) A list of all drug classes for which the employer may test;

   (10) A statement regarding any applicable collective bargaining agreement or contract and any right to appeal to the applicable court;

   (11) A statement notifying employees and job applicants of their right to consult with a medical review officer for technical information regarding prescription or nonprescription medication; and

   (12) A statement complying with the requirements for notice under § 11-14-101.

(b) A covered employer shall ensure that at least sixty (60) days elapse between a general one-time notice to all employees that a drug-free workplace program is being implemented and the effective date of the program.

(c) A covered employer shall include notice of drug and alcohol testing on vacancy announcements for positions for which drug or alcohol testing is required. A notice of the covered employer's drug and alcohol testing policy must also be posted in an appropriate and conspicuous location on the covered employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the covered employer during regular business hours in the covered employer's personnel office or other suitable locations.

(d) Subject to any applicable provisions of a collective bargaining agreement or any applicable labor law, a covered employer may rescind its coverage under this chapter by posting a written and dated notice in an appropriate and conspicuous location on its premises. The notice shall state that the policy will no longer be conducted pursuant to this chapter. The employer shall also provide sixty (60) days' written notice to the employer's workers' compensation insurer of the rescission. As to employees and job applicants, the rescission shall become effective no earlier than sixty (60) days after the date of the posted notice.

(e) The Director of the Workers' Health and Safety Division of the Workers' Compensation Commission shall develop a model notice and policy for drug-free workplace programs
11-14-106.  Required drug or alcohol tests.

  (a) To the extent permitted by law, a covered employer who voluntarily establishes a drug-free workplace is required to conduct the following types of drug or alcohol tests:

   (1) Job Applicant Drug and Alcohol Testing. A covered employer must require job applicants to submit to a drug test after a conditional offer of employment and may use a refusal to submit to a drug test or a positive confirmed drug test as a basis for refusing to hire a job applicant. An employer may test job applicants for alcohol, but is not required to, after a conditional offer of employment. Limited testing of applicants, only if it is based on a reasonable classification basis, is permissible in accordance with a Workers' Health and Safety Division of the Workers' Compensation Commission rule;

   (2) Reasonable-suspicion drug and alcohol testing. A covered employer must require an employee to submit to reasonable-suspicion drug or alcohol testing. A written record shall be made of the observations leading to a controlled-substances reasonable suspicion test within twenty-four (24) hours of the observed behavior or before the results of the test are released, whichever is earlier. A copy of this documentation shall be given to the employee upon request, and the original documentation shall be kept confidential by the covered employer pursuant to § 11-14-109 and shall be retained by the covered employer for at least one (1) year;

   (3) Routine Fitness-For-Duty drug testing.  (A) A covered employer shall require an employee to undergo drug or alcohol testing, if as a part of the employer's written policy, the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination or is scheduled routinely for all members of an employment classification or group. Provided, a public employer may require scheduled, periodic testing only of employees who:

         (i) Are police or peace officers;

         (ii) Have drug interdiction responsibilities;

         (iii) Are authorized to carry firearms;

         (iv) Are engaged in activities which directly affect the safety of others;

         (v) Work in direct contact with inmates in the custody of the Department of Correction; or

         (vi) Work in direct contact with minors who have been adjudicated delinquent or who are in need of supervision in the custody of the Department of Human Services.

      (B) This subdivision does not require a drug or alcohol test if a covered employer's personnel policy on July 1, 2000, does not include drug or alcohol testing as part of a routine fitness-for-duty medical examination. The test shall be conducted in a nondiscriminatory manner. Routine fitness-for-duty drug or alcohol testing of employees does not apply to volunteer employee health screenings, employee wellness programs, programs mandated by governmental agencies, or medical surveillance procedures that involve limited examinations targeted to a particular body part or function;

   (4) Follow-up Drug Testing. If the employee in the course of employment enters an employee assistance program for drug-related or alcohol-related problems or a drug or alcohol rehabilitation program, the covered employer must require the employee to submit to a drug or alcohol test, as appropriate, as a follow-up to the program, unless the employee voluntarily entered the program. In those cases, the covered employer has the option to not require follow-up testing. If follow-up testing is required, it must be conducted at least one (1) time per year for a two-year period after completion of the program. Advance notice of a follow-up testing date must not be given to the employee to be tested; and

   (5) Post-accident testing. After an accident which results in an injury, the covered employer shall require the employee to submit to a drug or alcohol test in accordance with the provisions of this chapter.

(b) This chapter does not preclude an employer from conducting any lawful testing of employees for drugs or alcohol that is in addition to the minimum testing required under this chapter..

11-14-107.  Testing subject to Department of Transportation procedures -- Verification -- Chain of custody procedures -- Costs -- Discrimination on grounds of voluntary treatment prohibited.

  (a) All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States Department of Transportation rules for workplace drug and alcohol testing compiled at 49 C.F.R., Part 40.

(b) A covered employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.

(c) A covered employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by regulations of the United States Department of Transportation or such other recognized authority approved by rule by the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission governing drug testing.

(d) A covered employer shall pay the cost of all drug and alcohol tests, initial and confirmation, which the covered employer requires of employees. An employee or job applicant shall pay the costs of any additional drug or alcohol tests not required by the covered employer.

(e) A covered employer shall not discharge, discipline, or discriminate against an employee solely upon the employee's voluntarily seeking treatment while under the employ of the covered employer for a drug-related or alcohol-related problem if the employee has not previously tested positive for drug or alcohol use, entered an employee assistance program for drug-related or alcohol-related problems, or entered a drug or alcohol rehabilitation program. Unless otherwise provided by a collective bargaining agreement, a covered employer may select the employee assistance program or drug or alcohol rehabilitation program if the covered employer pays the cost of the employee's participation in the program. However, nothing in this chapter is intended to require any employer to permit or provide such a rehabilitation program.

(f) If drug or alcohol testing is conducted based on reasonable suspicion, the covered employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request, and the original documentation shall be kept confidential by the covered employer pursuant to § 11-14-109 and shall be retained by the covered employer for at least one (1) year.

11-14-108.  Drug or alcohol use not handicap or disability -- Drug or alcohol use cause for firing or failure to hire -- Miscellaneous provisions.

  (a) An employee or job applicant whose drug or alcohol test result is confirmed as positive in accordance with this section shall not by virtue of the result alone be deemed to have a handicap or disability as defined under federal, state, or local handicap and disability discrimination laws.

(b) A covered employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with this section is considered to have discharged, disciplined, or refused to hire for cause. Nothing in this chapter shall be construed to amend or affect the employment-at-will doctrine.

(c) No physician-patient relationship is created between an employee or job applicant and a covered employer or any person performing or evaluating a drug or alcohol test solely by the establishment, implementation, or administration of a drug or alcohol testing program. This section in no way relieves the person performing the test from responsibility for acts of negligence in performing the tests.

(d) Nothing in this section shall be construed to prevent a covered employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs or alcohol, including convictions for offenses relating to drugs or alcohol, and taking action based upon a violation of any of those rules.

(e) This section does not operate retroactively and does not abrogate the right of an employer under state law to lawfully conduct drug or alcohol tests or implement lawful employee drug-testing programs. The provisions of this chapter shall not prohibit an employer from conducting any drug or alcohol testing of employees which is otherwise permitted by law.

(f) If an employee or job applicant refuses to submit to a drug or alcohol test, the covered employer is not barred from discharging or disciplining the employee or from refusing to hire the job applicant. However, this subsection does not abrogate the rights and remedies of the employee or job applicant as otherwise provided in this section.

(g) This section does not prohibit an employer from conducting medical screening or other tests required, permitted, or not disallowed by any statute, rule, or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. The screening or testing is limited to the specific substances expressly identified in the applicable statute, rule, or regulation, unless prior written consent of the employee is obtained for other tests. The screening or testing need not be in compliance with the rules adopted by the Workers' Health and Safety Division of the Workers' Compensation Commission and by the Department of Health. If applicable, such drug or alcohol testing must be specified in a collective bargaining agreement as negotiated by the appropriate certified bargaining agent before such testing is implemented.

(h) No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug or alcohol testing.

11-14-109.  Confidentiality of records.

  (a) All information, interviews, reports, statements, memoranda, and drug or alcohol test results, written or otherwise, received by the covered employer through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings except in accordance with this section or in determining compensability under this chapter or the Workers' Compensation Law, § 11-9-101 et seq.

(b) Covered employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs, and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of such information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless the release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section relevant to a legal claim asserted by the employee or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. At a minimum, the consent form must contain:

   (1) The name of the person who is authorized to obtain the information;

   (2) The purpose of the disclosure;

   (3) The precise information to be disclosed;

   (4) The duration of the consent; and

   (5) The signature of the person authorizing release of the information.

(c) Information on drug or alcohol test results for tests administered pursuant to this chapter shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this section is inadmissible as evidence in any such criminal proceeding.

(d) This section does not prohibit a covered employer, agent of such employer, or laboratory conducting a drug or alcohol test from having access to employee drug or alcohol test information or using such information when consulting with legal counsel in connection with actions brought under or related to this section, or when the information is relevant to its defense in a civil or administrative matter. Neither is this section intended to prohibit disclosure among management as is reasonably necessary for making disciplinary decisions relating to violations of drug or alcohol standards of conduct adopted by an employer.

(e) A person who discloses confidential medical records of an employee except as provided in this chapter shall be deemed guilty of a Class C misdemeanor.

11-14-110.  Licensure of testing laboratory.

  (a) A laboratory may not analyze initial or confirmation test specimens unless:

   (1) The laboratory is licensed and approved by the Department of Health, using criteria established by the United States Department of Health and Human Services as guidelines for modeling the state drug-free testing program pursuant to this section, or the laboratory is certified by the Department of Health and Human Services, the College of American Pathologists, or such other recognized authority approved by rule by the Director of the Workers' Health and Safety Division of the Workers' Compensation Commission. The Department of Health may license and approve any new laboratory to analyze initial or confirmation test specimens under the provisions of this chapter and may charge a fee not to exceed two thousand dollars ($2,000) for the license and approval of the new laboratory; and

   (2) The laboratory complies with the procedures established by the United States Department of Transportation for a workplace drug test program or such other recognized authority approved by the director.

   (3) The fees set forth in this section shall be cash funds of the Department of Health and shall be deposited as provided in § 19-4-801 et seq.

(b) Confirmation tests may be conducted only by a laboratory that meets the requirements of subsection (a) of this section and is certified by either the Substance Abuse and Mental Health Services Administration or the Forensic Urine Testing Programs of the College of American Pathologists.

11-14-111.  Rules and regulations.

  (a) The Director of the Workers' Health and Safety Division of the Workers' Compensation Commission is authorized to adopt rules, using criteria established by the United States Department of Health and Human Services and the United States Department of Transportation as guidelines, for modeling the state drug and alcohol testing program, concerning, but not limited to:

   (1) Standards for licensing drug and alcohol testing laboratories and suspension and revocation of such licenses;

   (2) Body specimens and minimum specimen amounts that are appropriate for drug or alcohol testing;

   (3) Methods of analysis and procedures to ensure reliable drug or alcohol testing results, including the use of breathalyzers and standards for initial tests and confirmation tests;

   (4) Minimum cut-off detection levels for alcohol, each drug, or metabolites of such drug for the purposes of determining a positive test result;

   (5) Chain-of-custody procedures to ensure proper identification, labeling, and handling of specimens tested; and

   (6) Retention, storage, and transportation procedures to ensure reliable results on confirmation tests and retests.

(b) The director is authorized to adopt relevant federal rules concerning drug and alcohol testing as a minimum standard for testing procedures and protections. All such rules shall be promulgated in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq.

(c) The director shall consider drug testing programs and laboratories operating as a part of the Forensic Urine Drug Testing Programs of the College of American Pathologists in issuing guidelines or promulgating rules relative to recognized authorities in drug testing.

(d) The director is authorized to set education program requirements for drug-free workplaces by rules promulgated in accordance with the requirements of the Arkansas Administrative Procedure Act, § 25-15-201 et seq. The requirements shall not be more stringent than the federal requirements for workplaces regulated by Department of Transportation rules.

11-14-112.  Rating plans based on drug-free workplace program participation.

  The Insurance Commissioner shall approve rating plans for workers' compensation insurance that give specific identifiable consideration in the setting of rates to employers that implement a drug-free workplace program pursuant to rules adopted by the Workers' Health and Safety Division of the Workers' Compensation Commission. The plans must take effect January 1, 2000, must be actuarially sound, and must state the savings anticipated to result from the drug testing. The credit shall be at least five percent (5%) unless the Insurance Commissioner determines that five percent (5%) is actuarially unsound. The Insurance Commissioner is also authorized to develop a schedule of premium credits for workers' compensation insurance for employers who have safety programs that attain certain criteria for safety programs. The Insurance Commissioner shall consult with the Director of the Department of Labor in setting such criteria.

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