Presenters: Tommy Eden, Attorney Capell & Howard, P.C. Blog: SAPAA Board Member

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1 Presenters: Tommy Eden, Attorney Capell & Howard, P.C. Blog: SAPAA Board Member Disclaimer: This presentation does not constitute legal advice and is for educational purposes only.

2 Risk and Rewards of Workplace Drug Testing Workplace drug testing is a safety program essential Accident prevention results in fewer workplace accidents and lower workers compensation MOD rates. Like any good safety program it has to be done correctly and legally. These are the top 10 drug testing mistakes employees make and how to avoid them. 22

3 Top Ten Drug Testing Mistakes Employers Make Number # 1 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations Number #2 Using an Un-Trained DER to Administer a Program Number #3 Not Following State Mandated WC or UC Protocols When Testing Post Accident Number #4 Using Uncertified Drug and Alcohol Testing Collectors Number #5 Failing to Properly Conduct Supervisory Reasonable Suspicion Training 10/15/2012 3

4 Top Ten Drug Testing Mistakes Employers Make Number # 6 Not Taking Into Account Medical Marijuana Laws/Ordinances Number #7 Failing to Recognize That Drug Testing of Public Entity Employees Falls Under 4 th Amendment Protections Number #8 Failing to utilize a legally compliant last chance agreement as a discharge alternative Number #9 Breaching Drug Testing Confidentiality Laws/Regulations Number #10 Requiring Disclosure of Prescription Medication Without Proper Safeguards 4

5 5 #1 - Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations DOT mandates regulated drug and alcohol testing of over 23 million employees. DOT has a complex set of regulations for policy drafting involving commercial trucking, rail roads, Coast Guard, pipeline, mass transit and airline employees.

6 6 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations Each of the DOT modes has different policy drafting and notice requirements Civil fines of up to $10,000 per occurrence for being out of compliance 49 U.S.C Civil Penalties.

7 7 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations On August 18, 2010 U.S. Transportation Secretary Ray LaHood announced that 109 commercial bus and truck drivers were removed from the roads and more than 175 carriers face enforcement actions as a result of the Federal Motor Carrier Safety Administration s annual drug and alcohol strike force sweep that occurred from June 21 through July 2.

8 8 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations 15 states offer workers compensation premium discounts with differing policy language mandates Example Wyoming: ES/DrugAlcoholApplication.pdf Some states have criminal laws such as Oklahoma which provides for fines up to $5,000 or one year imprisonment, or both, for those employers who fails to comply. Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Okla. Stat. Ann. Tit and Okla. Admin. Code 310: to 310: Will all change effective Nov 1, 2011.

9 9 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations There also a number of case decisions that will not show up in the state statutes that you have to know about to be able to draft a legally compliant state law policy. Example: Supreme Court of California. Case of Lorraine LODER v. CITY OF GLENDALE, 59 Cal.Rptr.2d 696 (Calif 1997)(under the California constitutional right to privacy only safety sensitive employees should be subjected to suspicionless-random -- drug testing) Avoidance Tip: Use only legally compliant workplace drug testing written policies and forms.

10 10 Failing to Adopt a Written Drug Testing Policy Compliant with State Laws or DOT Regulations To find out more specific information about the laws in your state visit Blog:

11 11 #2 - Using an Un-Trained DER to Administer a Program In 2001 the DOT first used the term DER as follows: 49 CFR Part 40.3: Designated employer representative (DER). An employee authorized by the employer to take immediate action(s) to remove employees from safetysensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.

12 12 Using an Un-Trained DER to Administer a Program The primary duty of the DER is to confidentially receive drug testing results from the laboratory and MRO and make decisions on removal of the employee from safety sensitive duty A well-trained DER is a company's absolute best risk reduction investment

13 13 Using an Un-Trained DER to Administer a Program The DER can be responsible for the following: Program set up MRO and Laboratory Selection Location of a Substance Abuse Professional in the event of a positive drug test Ensuring that a legally compliant policy is adopted and workers comp discounts are applied for Monitoring the random testing program

14 14 Using an Un-Trained DER to Administer a Program Ensuring that employees receive awareness training program and that the proper acknowledgment forms are completed Ensuring that supervisors receive reasonable suspicion training and that training logs are maintained Ensuring that only certified collectors are utilized and monitored Following the proper procedures for prior employer verification under DOT regulations Investigation of positive drug test protocol prior to termination decisions

15 15 Using an Un-Trained DER to Administer a Program Monitoring prescription medication disclosure issues in compliance with Americans with Disabilities Act (ADA) criteria Assisting in the evaluation of last chance agreements and drafting of legally enforceable agreements Auditing the company's program for compliance and risk reduction Avoidance Tip: WOLFE provides DER training courses.

16 16 #3 - Not Following State Mandated WC or UC Protocols When Testing Post Accident Each state has its own mandated statutory and administrative requirements for the denial of workers compensation (WC) and unemployment compensation (UC) when an employee has a positive drug or alcohol test, or refuses to be tested. Not including the applicable UC and WC disqualification language in your drug-free workplace policy, and the employee sign offs, may diminish your ability to achieve a favorable outcome.

17 17 Not Following State Mandated WC or UC Protocols When Testing Post Accident Avoidance Tip: Have one signed employee acknowledgment that you can take into the UC or WC proceeding to prove that the employee had fair notice of the disqualification statute. For example in the State of Alabama we insert the following WC & UC language in the employee acknowledgment -- I understand and acknowledge that under Section , et seq., of the Code of Alabama (1975), no workers compensation benefits will be paid to me if I test positive for drugs or alcohol in a confirmed laboratory test at the time of a work-related injury or death, or if I refuse to submit to either a drug or alcohol test or screening at the time of a work accident. Section , et seq. of the Code of Alabama (1975), reads, in part:

18 Not Following State Mandated WC or UC Protocols When Testing Post Accident A positive drug test conducted and evaluated pursuant to standards adopted for drug testing by the U.S. Department of Transportation in 49 C.F.R. Part 40 shall be a conclusive presumption of impairment resulting from the use of illegal drugs. No compensation shall be allowed if the employee refuses to submit to or cooperate with a blood or urine test as set forth above after the accident after being warned in writing by the employer that such refusal would forfeit the employee s right to recover benefits under this Chapter. Section , et seq. of the Code of Alabama (1975). I also understand and acknowledge that under Section , et seq., of the Code of Alabama (1975), no unemployment benefits will be paid to me if I am dismissed as the result of a positive confirmed laboratory test for drugs or alcohol; or if I refuse to submit to an initial screening or a laboratory test for drugs or alcohol; or if I refuse to cooperate with a Company representative; or if I knowingly alter or adulterate any screening or test sample. Section , et seq., reads, in part: A confirmed positive drug test that is conducted and evaluated according to standards set forth for the conduct and evaluation of such tests by the U.S. Department of Transportation in 49 C.F.R. Part 40 or standards shown by the employer to be otherwise reliable shall be a conclusive presumption of impairment by illegal drugs. No unemployment compensation benefits shall be allowed to an employee having a confirmed positive drug test if the employee had been warned that such a positive test could result in dismissal pursuant to a reasonable drug policy...further, no unemployment compensation benefits shall be allowed if the employee refuses to submit to or cooperate with a blood, urine or hair test as set forth above, or if the employee knowingly alters or adulterates the blood or urine specimen. 18

19 19 Not Following State Mandated WC or UC Protocols When Testing Post Accident In AL an employer must prove that it has a drug-free workplace policy applicable to all employees at the company, including the president, and that a medical review officer issued a opinion finding that the result was positive for a disqualification. ation.pdf

20 20 Not following state mandated WC or UC protocols when testing post accident By Alabama case authority an employer must show a causal connection between the positive drug test result and manner in which the accident occurred to eliminate the innocent bystander issue. For a specific AGC Workers Compensation Trust Fund we have conducted diligence reviews of positive drug using the services of a trained MRO. By following this process, the Funds reports they have saved over $20 Million in Identifiable Claims

21 21 #4 - Using Uncertified Drug and Alcohol Testing Collectors You may recall a 20/20 documentary a few years ago where reporters utilized secret cameras in their caps and entered drug and alcohol testing collection centers at truck stops The videos showed rampant substitution and adulteration of drug samples by truck drivers and non-caring attitudes by the collectors Congressman Oberstar held a series of hearings and the DOT was caused to adopt direct observation procedures after much embarrassment.

22 22 Using Uncertified Drug and Alcohol Testing Avoidance Tips: Collectors 1. WOLFE provides training for certified collectors 2. Request in writing that all of the collectors who work for your company produce a certificate of training by one of the nationally recognized organizations 3. Have your DER conduct a surprise audit of your collection sites 4. The DOT mandates the use of only trained and certified collectors 49 CFR Part Drug testing collection is the weakest link in the chain and the one over which the employer has the most control ~ so control it.

23 23 #5- Failing to Properly Conduct Supervisory Reasonable Suspicion Training Supervisors are on the frontline to help you maintain a drug-free workplace Avoidance Tips: 1. Training them on how to recognize the signs and symptoms of drug and alcohol use is critical to equip them with the necessary tools 2. Supply them with a reasonable suspicion checklist and training on how to use it. Supply them with a script so there is no question what they will tell the employee. 3. WOLFE offers Reasonable Suspicion Training

24 24 Reasonable Suspicion Guidelines And Tips For Supervisory Training Supervisor Guideline Steps: Eye Witness Event or Behavior Document on Reasonable Suspicion Checklist Behavior/Situation as it relates to job performance Contact employee s supervisors to inform of situation and ask for assistance Read script to employee with another supervisor present Drive employee to collection site

25 25 Supervisor Intervention Tips: Do Not... Do... - Diagnose - Know the policy - Moralize - Focus on job performance - Be overly sympathetic - Be specific - Cover up - Be respectful - Talk about with others - Document

26 26 Reasonable Suspicion Script: ( ), as you know the Company has a Drug and Alcohol Testing Program Policy and as an employee of the Company you have agreed to abide by its policy to prevent drug and alcohol abuse in the workplace. At this time, as your supervisor I am instructing you that you must submit to a reasonable suspicion drug screen and/or breath alcohol test at this time. A Company representative will go with you to the collection facility. Suspected employee is not allowed to drive himself/herself in a Company vehicle to the collection site location. If an employee leaves the premises in a private vehicle against the supervisor s instruction, the Designated Employer Representative or Supervisor may consider notifying local authorities.

27 27 DOT Added to Drug Panel October 1 st - Impairing Effects of Ecstasy: People take the drug to feel mentally stimulated, physically energetic, emotionally positive and to experience a level of enhanced sensory perception. Seems to have a rather unique capacity for inducing states of empathy where people feel very bonded. However, the drug can also cause nausea, chills and sweating, muscle cramping and anxiety. MDMA increases heart rate and blood pressure and can interfere with the body's hydration level and salt balance. In rare cases, a person on Ecstasy can experience extremely high body temperatures, which can be life-threatening.

28 28 Impairing Effects of Cocaine Causes confusion and stimulation. Increased excitability and over reaction to stimulus with increased apprehension and restlessness. Possible visual and/or auditory hallucinations. May cause muscular spasm, stomach and/or chest pain and an increased susceptibility to seizures. Increased blood pressure. Unrealistic sense of power, control, or abilities. Increased aggressiveness and suspicion toward others. May question authority. Continued or prolonged use eventually leads to depression and exhaustion. C. B. Thuss, Jr. M.D., MRO SAPAA Board Member

29 29 Impairing Effects of Marijuana Causes an inability to concentrate or remain focused on a single thought or idea. Increased drowsiness, fatigue and lethargy. Inability to accurately gauge lengths of time and distance as well as impairment of hearing and vision and short term memory. Inability to cope with sudden changes in surrounding and/or emergency situations. Loss of balance. Visual and/or auditory hallucinations. Non-caring, uncommitted, unconcerned attitude. C. B. Thuss, Jr., M.D., MRO SAPAA Board Member

30 30 Failing to Properly Conduct Supervisory Reasonable Suspicion Training Critical that your supervisors are trained on all of these and other drugs as well DOT required 60 minutes of alcohol and 60 minutes of drug training Many of the states have a similar requirement under their workers comp premium reduction statutes Failing to provide the necessary training could jeopardize your workers comp premium discounts status as well as unemployment and workers comp disqualification and subject you to DOT fines

31 31 #6 - Not Taking Into Account Medical Marijuana Laws/Ordinances The U.S. now has 16 states with medical marijuana laws, Delaware being the most recent. Imperative that you recognize the risk associated with marijuana use by safety sensitive employees as noted above in the your supervisory training discussion No state thus far has required an employer to accommodate the use of medical marijuana. California Supreme Court: GARY ROSS v RAGINGWIRE TELECOMMUNICATIONS, INC. But Delaware may be changing that shortly.

32 Medical Marijuana State Laws 32

33 33 Sixteen states and Fifteen Cities have state laws that permit the medical use of smoked marijuana, some with implementing regulations. Two states, Arizona and Maryland also have statutes that address medical marijuana. 1. Alaska 2. Arizona physicians and patients may be protected from provisions for possession, use, production, sale, or transportation of marijuana 3. California 4. Colorado 5. Hawaii 6. Maine 7. Maryland refers to use relative to criminal defense only 8. Montana 9. Nevada 10. New Mexico 11. Oregon 12. Rhode Island 13. Vermont 14. Washington State 15. New Jersey 16. Delaware

34 34 Fifteen Cities: 1. City of Columbia, Missouri 2. City of Ann Arbor, Michigan 3. City of Detroit, Michigan 4. City of Flint, Michigan 5. City of Ferndale, Michigan 6. Traverse City, Michigan 7. City of Arcata, California 8. City of Berkeley, California 9. City of Oakland. California 10. City of San Diego, California 11. City of San Jose, California 12. City of Santa Cruz, California 13. City of Santa Rosa, California 14. City of Sebastopol, California 15. City of Los Angles, California

35 35 Los Angeles City Council finally adopts medical marijuana ordinance

36 36 California Cal. Health and Safety Code Sections Applicability: Law applies to physicians, patients and caregivers Quantity Allowed: 8 oz or less dried or 6 or less mature or 12 or less immature plants How Obtained: Growing permitted otherwise not specified

37 37 California (cont.) Liability Protections: Physicians: protected from criminal prosecution when recommending marijuana for medical use Patients and Caregivers: protected from arrest for possession, transportation, delivery, or cultivation if patient or caregiver has a valid I.D. (Note: I.D. card is voluntary). Statutory Requirements For Authorized Use: No Registry Card required. I.D. Cards issued by State Department of Health. I.D. cards are voluntary and must be renewed annually. New information must be verified by County Health Department

38 Delaware Assembly Waiting to Inhale 38

39 39 Who is Covered In Delaware? Delaware residents with certain specific debilitating medical conditions and who have received certification of a physician may apply for a state-issued medical marijuana card. Caregivers of Delaware residents with certain specific debilitating medical conditions. Visiting medical marijuana users with a valid recommendation from a physician.

40 40 What is Covered in Delaware? Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own. Cardholders may then legally purchase marijuana at state-licensed non-profit dispensaries known as compassion centers." Only one state licensed dispensary in each county. The Delaware Department of Health and Social Services which will administer the registrations for patients, caregivers, and compassion centers.

41 41 Employer Landmines in Delaware The bill prohibits cardholders from using medicinal marijuana at work Bars discrimination against them in hiring, termination, or other terms and conditions of employment. S.B. 17 makes it clear that positive drug tests can t serve as a basis for discipline of a cardholder unless the person used, possessed, or was impaired by marijuana at work during normal working hours.

42 42 Employer Landmines, Cont d Further, the law states that cardholders shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment in a drug test.

43 43 Not Taking Into Account Medical Marijuana Laws/Ordinances Avoidance Tip: It is imperative that you include a policy statement that the company does not accommodate the use of medical marijuana by safety sensitive employees. Then define what is safety sensitive. Update you DOT policy as well. Medical marijuana to be treated like any other prescription medication. It is all about safety under the ADA and State ADA laws.

44 44 #7 - Failing to Recognize That Drug Testing of Public Entity Employees Falls Under 4 th Amendment Protections Beginning with a federal court case out of the City of Hollywood, Florida approximately 15 years ago there has blossomed into the law a clear understanding that public entity employees are only subject to suspicionless drug testing if they are safety sensitive. Drug Testing of public employees is considered to be a search and seizure under the 4 th Amendment to the United States Constitution.

45 45 Failing to Recognize That Drug Testing of Public Entity Employees Falls Under 4 th Amendment Protections Safety sensitive employees are those who hold positions where a momentary lapse of concentration can result in serious injury, environmental consequences, death, etc. Additionally, certain states such as Massachusetts only allow the random drug testing of safety sensitive employees. If you are a public entity employer, is critical that you classify employees as to whether or not they are safety sensitive.

46 46 Failing to Recognize That Drug Testing of Public Entity Employees Falls Under 4 th Amendment Protections In the City of Knoxville, Tennessee the Federal Circuit Court ruled that the school system had broad authority to make their safety sensitive classification decisions; the critical issue was that they in fact used someone as a safety sensitive evaluator. Advise against testing elected officials based on the mere fact that if they test positive what would you do with them. Avoidance Tip: Adopt a 4 th Amendment Compliant Policy and Forms. WOLFE is available to assist you with your policy needs.

47 47 #8 - Failing to utilize a legally compliant last chance agreement as a discharge alternative Firm proponent of granting employees a last chance after a positive drug test. Reduces the incidence of cheating in the drug testing process. Some of your best employees will be those that you have granted a second chance to. Last chance needs to be a written agreement with some real legal teeth.

48 Failing to utilize a legally compliant last chance agreement as a discharge alternative If you are in a unionized or public setting this agreement is absolutely critical to being able to separate the employee for that second positive test. DOT mandates in his regulations that the employer lay out the consequences of a positive drug test or refusal. Many of the states have a similar requirement. Consider whether you wish to use a SAP to help you make the decision if the employee is a good candidate for rehab. 48

49 49 Failing to utilize a legally compliant last chance agreement as a discharge alternative Highly recommend that you find out if the employee is a good candidate for rehabilitation before you make any promises. Need to adopt objective criteria in advance of testing to help you make discrimination free decisions. Criteria such as worked a year, good disciplinary record, good attendance record, good performance record.

50 50 Failing to utilize a legally compliant last chance agreement as a discharge alternative Union contract which will most likely mandates some type of second chance procedure. Most public employers seem to grant second chances.

51 Failing to utilize a legally compliant last chance agreement as a discharge alternative Avoidance Tips: 7 components of a good last chance agreement are as follows: 1) in writing; 2) signed by the employee and employer; 3) HIPAA Compliant; 4) employee pays for testing out of payroll deduction; 5) negative test results are conditions to continued employment; 6) employer right to receive reports of attendance at drug educational programs: and 7) alternative specimen testing allowed 51

52 52 #9 - Breaching Drug Testing Confidentially Laws/Regulations DOT has very strict requirements concerning the confidentiality of drug and alcohol testing information 49 CFR Part The fines mentioned previously would be enforceable up to $10,000 for an employer who breached the confidentiality. Every one of the states to speak to drug and alcohol testing have their own confidentiality laws

53 53 Breaching Drug Testing Confidentially Laws/Regulations Numerous ADA cases have arisen because employers improperly spread around information for example see Harrison v. Benchmark Electronics 11 th Circuit Court of Appeals. Avoidance Tip: The DER is the only one that should control the dissemination of the drug testing results and should be well trained in DOT regulations and state law.

54 54 Breaching Drug Testing Confidentially Laws/Regulations Employees under federal regulation have a right to receive a copy of their drug testing results 49 CFR Part If you receive a subpoena, there is a federal procedure to be followed in release of information 49 CFR Part Make sure that the subpoena you receive is from a court that has personal jurisdiction over the employee and DER. Numerous instances when attorneys will send subpoenas out of state and the court has absolutely no jurisdiction over the subpoenaed individual

55 55 Breaching Drug Testing Confidentially Laws/Regulations The employee can grant you the right to release information by signing a written statement 49 CFR Part There is also a procedure under the DOT regulations for release of information from a former DOT regulated employer. 29 CFR Part Make sure that you only release the information requested or request further release or clarification.

56 56 #10 -Requiring Disclosure of Prescription Medication Without Proper Safeguards This is recently turned into a hot button EEOC issue. The Americans with Disabilities Act Amendment of EEOC SUES PRODUCT FABRICATORS, INC. FOR DISABILITY DISCRIMINATION Agency Says Pine City Company Fired Employee for Taking Legally Prescribed Medication; Other Employees Subjected to Illegal Inquiries About Medication Use. P.A.M. Transport Sued by EEOC for Firing Driver Because of HIV and Conducting Impermissible Medical Inquiries.

57 57 Requiring Disclosure of Prescription Medication Without Proper Safeguards Trucking Company s Broad Policy Requiring Medical Disclosures Violates ADA, Federal Agency Charges. EEOC SUED DURA AUTOMOTIVE SYSTEMS FOR VIOLATIONS OF AMERICANS WITH DISABILITIES ACT Federal Agency Charges Company Made Medical Inquires and Conducted Medical Exams Prohibited by the ADA results in $800,000 jury verdict in August 2011.

58 58 Requiring Disclosure of Prescription Medication Without Proper Safeguards Avoidance Tips: 1. Include an ADA compliant impairing effect medication policy in your workplace drug and alcohol testing policy as a safety policy. 2. Do not require that a particular medication or condition be disclosed to a supervisor to comply with policy. 3. Encourage employees to seek the medical opinion from their personal physician, after providing them a copy of the written job description and clearance form. 4. Request that the employee provide pre-duty notice if they are taking any impairing effect prescription, or over-the-counter or impairing substance.

59 59 Requiring Disclosure of Prescription Medication Without Proper Safeguards 5. Violation of this safety rule they should be subject to discipline. 6. If you, believe that there is a safety issue then request that they submit to a fitness for duty evaluation. 7. Utilize your medical review officer to help you make that decision and also to serve as the final arbiter of the fitness for duty issue.

60 QUESTIONS? 60

61 61 Policy Review Special Offer A $750 value for $350 Includes $100 credit toward policy development Contact WOLFE by Friday October 19, 2012 by end of business to receive special pricing

62 62 How to Contact Presenter: Tommy Eden, Attorney Capell & Howard, P.C. Contact through Wolfe, Inc

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