What Role Does an Effective Drug Testing Program Play in Workers Compensation?

What Role Does an Effective Drug Testing Program Play in Workers Compensation?

William J. Judge, JD, LLM Research Counsel to Park-Dickens Group, LLC And the FightReady Service 708-334-8010 bjudge@fightreadynow.com

We Must Change The Way We Think

66.6% of current illicit drug users & 79.7% of heavy drinkers ARE EMPLOYED! http://www.oas.samhsa.gov/nsduh/2k8nsduh/2k8results.pdf 4

DRUG/ALCOHOL USE IMPACT AT WORK 38% to 50% of all workers' compensation claims are related to substance abuse in the workplace. Substance abusers incur 300% higher medical costs than non-abusers. Injuries on and off the job cost employers about $200 billion annually, or $1,700 per employee. A study showed that when the average company implemented a drug testing program, they experienced an 11.41% reduction in their workers compensation mod rate. Companies that did not, experienced a 1.6% increase in their mod rate. http://workplace.samhsa.gov/resourcecenter/r115.pdf http://www.news.cornell.edu/chronicle/00/6.29.00/drug-testing.html 5

Iowa Workers Compensation Iowa Code section 85.16 states as follows: No compensation under this chapter shall be allowed for an injury caused: (2) By the employee's intoxication, which did not arise out of the in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury.

Illinois has no Statutory Intoxication Defense to Workers Compensation Claim

PRESUMPTION OF INTOXICATION Alabama Arkansas Louisiana North Carolina Texas Virginia 8

PRESUMPTION OF INTOXICATION & CAUSE Alaska Arkansas Florida Georgia Kansas* Nevada North Dakota Ohio Oklahoma Tennessee Missouri *The positive drug or alcohol test performed in accordance with state law provides a conclusive presumption of intoxication and denial of benefits. 9

STATES WITH SPECIFIC MANDATES Alaska* California Connecticut Hawaii Iowa Kansas Louisiana Maine Maryland Massachusetts Minnesota Montana Nebraska Nevada New Jersey New York North Carolina Oklahoma Oregon Puerto Rico Rhode Island Utah Vermont * AK has both voluntary and mandatory requirements 10

PREMIUM DISCOUNT INCENTIVE PROGRAMS Alabama - 5% Alaska* - 5% Arizona - 5% Arkansas - 5% Florida - 5% Georgia - 7.5% Idaho - Not specified Kentucky - 5% Mississippi - 5% North Dakota - Not specified Ohio - 4-7% South Carolina - 5% Tennessee - 5% Virginia - 5% Wyoming - 5% * AK has both voluntary and mandatory requirements 11

Iowa The Iowa Perspective Perspective Iowa s The Changing Landscape

Must have a written policy. Written Policy Requirements Must provide policy to each employee and make available for review by each employee and prospective employee. (get acknowledgement signed) If employee minor (18) must provide copy to Parent. Must get receipt/acknowledgement of delivery to parent (cert. mail) Policy shall detail: 1. What discipline or rehab employer will take. 2. Must state any action ONLY based on test. Sec. 730.5 3. If rehab required (alcohol) must state no discipline so long as employee complies with requirements.

4. Must establish awareness program. 5. If have EAP, must explain benefits/services. MUST post notice of EAP benefits/services. MUST provide info re: how to access EAP. 6. If no EAP must have resource file of certified programs. Must explain what s in the file/how to access it. 7. If testing for alcohol must state cutoff (0.04). 8. Must explain alcohol rehab rule. (50/12/0 rule).

Procedural Issues: Key Points Must post notice of any EAP; Pay all costs of required tests; Send written notice of positive via certified mail; Inform those testing positive of their rights (split sample, etc); Require employee to pay for split only what Er paid for original test; Saliva testing OK but must be FDA approved (today there are none); Does not apply to public Employers. (State, Cities, counties, Schools); Must provide training tor supervisors and employees annually.

Procedural Issues: Continued Must give copy of policy and test result to guardian of minor (less than 18); Must allow rehab for those positive for alcohol if; 50 or more employees; Positive employee worked for you 12 of last 18 months; No previous violation; Cost of treatment shared (if no benefits plan limit Er share to $2,000) Specific definition of post-accident.

Iowa The Iowa Perspective Perspective Illinois The Changing Landscape

Public Works Construction Contractors Must do random tests Must remove any testing positive Must include policy in every bid Must make policy available to the public 18

Statutory Right to Privacy Lab Law: Requires confirmation in lab; Employee Rt. To blood test; Tampering crime Strict Requirements Courts require strict compliance Strict Requirements 50% wc discount

POLICY 20

PROGRAM DEVELOPMENT WHO Are you & who to test? WHAT to test for? WHERE on-site? WHEN test events? HOW test methods? WHY safety, mandated? 21

WHO To Test 1.Who CAN you test? 2. Who MUST you test? DE (Home Healthcare) School Bus Operators IL (Public Works Contract Employees) 22

WHAT To Test for 1. What drugs? DHHS-5 10-panel 2. Prescriptions safety-sensitive only????? collection request for med s (don t do it) 23

WHERE To Test On-site v. Lab-based Does on-site include instant? 24

WHEN To Test 1. Pre-employment/post-offer KS ME OK RI VT 2. Post-accident/injury ONLY w/reas. suspicion CT LA (teachers) MT OH WV 4. Random AK (safety-sensitive) CA (San. Fran. Ord.) CO (Boulder Ord.) CT (safety-sensitive) MA (safety-sensitive) ME (safety/negotiated) MN (Safety-sensitive) MT (Safety-sensitive) NJ (safety-sensitive) OK (Pub. Er. Safety-sensitive) PR (safety-sensitive) RI (no random) VT (no random) WV (safety-sensitive 25

HOW To Test Urine Hair Sweat Saliva 26

2011 HOT ISSUES ADAAA 08 Medical Marijuana State Issues Federal Issues K2 27

Bill Judge 708-334-8010 bjudge@fightreadynow.com 28