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S.C. Code Ann. 42-9-60 (WC)

S.C. Code Ann. 42-9-60 – Workers’ Compensation
Injury or death occasioned by intoxication or willful intention of employee; burden of proof.
No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the wilful intention of the employee to injure or kill himself or another. In the event that any person claims that the provisions of this section are applicable in any case, the burden of proof shall be upon such person.


S.C. Code Ann. 41-1-15
Establishment of drug prevention program in workplace; confidentiality of information concerning test results.
(A) Notwithstanding any other provision of the law, an employer may establish a drug prevention program in the workplace pursuant to Section 38-73-500(B) which shall include:

(1) a substance abuse policy statement that balances the employer's respect for individuals with the need to maintain a safe, productive, and drug-free environment. The intent of the policy shall be to help those who need it while sending a clear message that the illegal use of nonprescription controlled substances or the abuse of alcoholic beverages is incompatible with employment at the specified workplace; and

(2) notification to all employees of the drug prevention program and its policies at the time the program is established by the employer or at the time of hiring the employee, whichever is earlier.

(B) All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence, obtained in discovery, or disclosed in any civil or administrative proceeding.

(C) Employers, laboratories, medical review officers, insurers, drug or alcohol rehabilitation programs, and employer drug prevention programs, and their agents who receive or have access to information concerning test results shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the employee tested or his designee unless the release is completed through disclosure by an agency of the State in a civil or administrative proceeding, order of a court of competent jurisdiction, or determination of a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum:

(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.

(D) Information on test results shall not be released for or used or admissible in any criminal proceeding against the employee.

Department of Insurance Bulletin 97-3
I. MANDATORY FIVE PERCENT PREMIUM RATE CREDIT
Each insurer underwriting workers' compensation casualty insurance within this State for any qualified employer which can evidence a workplace drug and alcohol abuse prevention program, pursuant to any insurer developed program or as detailed within Section II of this bulletin, must allow that qualified employer a minimum five percent insurance premium rate credit for any policy issued on, and after, October 1, 1997. That credit must be applied to voluntary market insureds in a multiplicative manner before the application of experience modifications and the insurer's expense constant. That credit must be applied to residual market insureds in a multiplicative manner before the application of any experience modifications, the Assigned Risk Plan Adjustment factor, and the residual market's expense constant.
Although a minimum five percent credit is required for qualified employers, insurers or licensed rating organizations may file for the approval of greater than five percent credits. Further, by this bulletin, tiered credits are encouraged. Insurers and licensed rating organizations should consider allowing employers with developing workplace drug and alcohol abuse prevention programs which do not meet the minimum premium rate credit standards detailed within this bulletin or the underwriting insurer's or licensed rating organization's program guidelines a less than five percent credit until their workplace programs are enhanced to meet the minimum standards or the underwriting insurer's or licensed rating organization's program guidelines. Employers with workplace drug and alcohol abuse prevention programs which are stronger than the applicable minimum standards could be granted a greater than five percent credit.
The Act does allow insurers and licensed rating organizations to file for the regulatory approval of a less than five percent credit for qualified workplace programs in the event that the five percent credit is "not actuarially sound." Any such filing will be considered on a filing-by-filing basis and must be based upon credible experience including, but not limited to, existing reliable claims experience developed over a substantial period of time for similar employer workplace drug and alcohol abuse prevention programs.
II. QUALIFIED EMPLOYER WORKPLACE PROGRAM MINIMUM REQUIREMENTS
In the event that an insurer either has not established its own workplace drug and alcohol abuse prevention program guidelines or has not subscribed to a licensed rating organization's program guidelines, the Act — within Section 2 and Section 1, Section 38-73-500(C) — sets out the minimum requirements for an employer program which must be certified to receive the five percent premium rate credit. The qualified employer program must include:
1. Substance Abuse Policy Statement . By law, any policy must be designed to help employees who need substance abuse assistance while, at the same time, sending a clear message that the abuse of drugs and alcohol is not compatible with employment in that employer's workplace. The policy statement must evidence both the employer's respect for its employees and the employer's need to maintain a safe, productive, substance-abuse-free environment.
2. Employee Notification . In order to protect the individual rights of each employee and to begin the employee education process necessary for a well-defined, well-managed workplace drug and alcohol abuse prevention program, each existing employee and each new employee hired after program implementation must be given a clear, concise, readable notice of the program, the program's requirements, the policy statement, and the employer's expectations under the program. Notification should be, and should remain, conspicuously posted in employee common areas. In addition, each existing employee and each new employee must be given, by mail or by in-person delivery, a copy of the notice. Delivery may be accomplished by inclusion of the notice within the employee's paycheck package or any similarly important-to-the-employee correspondence or benefits delivery.
3. Testing Procedure . Exact testing procedures must not be promulgated by the Department of Insurance. Rather, the development of, or the selection of, testing procedures for any individual employer are left to that employer, to the recommendation of the underwriting insurer or the underwriting insurer's licensed rating organization, or to any third-party workplace program or testing service contractor or consultant. Testing procedures offered, recommended, developed, or modified by insurers or by licensed rating organizations will not be approved as part of any insurer's or licensed rating organization's filing unless those specific testing procedures are required by the underwriting insurer for the premium rate credit. If so required, then those testing procedures must be made part of the rate filing. It is important to note that the Act sets certain testing standards which must be included within any employer's workplace program in order for that employer to be certified for the premium rate credit. Code Section 38-73-500(C) requires:
The testing procedure established by the insurer, employer, or his designee, or, approved by the director, must include a provision for random sampling of all persons who receive wages and compensation in any form from the employer and must provide for a second test to be administered within thirty minutes of the administration of the first test. Positive test results must be provided in writing to the employee within twenty-four hours of the time the employer receives the test results. Each employer must keep records of each test for up to one year.
4. Test Results Confidentiality Protocols . The Act includes detailed test results release limitations. Test results, information, interviews, reports, statements, and memorandums received by the employer must be considered confidential. The burden to protect against unauthorized release is placed not only upon the employer and any laboratory, medical review officer, or rehabilitation program or their agents, but also upon the underwriting insurer. Release can only be made following court order, State agency disclosure in a civil or administrative proceeding, or pursuant to a written consent form voluntarily signed by the tested employee or by that employee's "designee." The consent form must include the name of the person authorized to obtain the information, the specific purpose of the disclosure, the precise information to be disclosed, the duration of the consent to release, and an original signature of the person authorizing the release of the test results or other information.
The above-detailed standards are the minimum standards necessary for an employer's workplace drug and alcohol prevention program to be certified by an underwriting insurer for the five
percent premium rate credit. Employers with stronger than the minimum standards programs could receive a greater than five percent premium rate credit. Employers with less than that minimum standards programs could receive a less than five percent premium rate credit.
III. REGULATORY FILINGS AND INSURER IMPLEMENTATION
In order to ensure that all employers with qualified workplace drug and alcohol abuse prevention programs properly receive the credit on, and after, October 1, 1997, licensed rating organizations which file on behalf of insurers transacting workers' compensation casualty business within this State must file a program for use by member insurers for the premium rate credit for prior approval by the Department of Insurance by September 1, 1997. The Alternative Workers' Compensation Plan for Small Commercial Insureds must file its program for the premium rate credit for prior approval by the Department of Insurance or by written notice to the Department of Insurance must adopt the program outlined in bulletin Section II by September 15, 1997. In order to encourage employer education, ensure employer certification, and evidence employer program compliance, those filings must include an employer program checklist and an underwriting insurer audit program. The employer checklist must provide for review and signature by the employer or by an employer officer. As the administrator of this State's residual market assigned risk plan, the National Council on Compensation Insurance's workplace program filing must also include a residual market employer audit program. Insurers filing their own credit programs may continue to file at any time. Licensed rating organization member insurers filing deviations from the licensed rating organization's program for different credits or different programs may file at any time after September 1, 1997. All individual insurer filings must also include employer certification checklists and insurer audit programs. All filings will be given expedited review and should be directed to Dean F. Kruger, Forms and Rates Director, Office of Actuarial Services, State of South Carolina Department of Insurance, Post Office
Box 100105, Columbia, South Carolina 29202
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