Post on 07-Oct-2020
transcript
Title of Presentation
Drug-Free Workplace Enforcement:
Don't Get Lost in the Weeds
Presented by: Kathryn B. Gray
Introduction
Drug-Free Workplace Policy BestPractices
Elements of a Drug Testing Program
Implications of Marijuana Legalization
Employee Addiction Treatment Issues
Determining Your Company’s Needs
One size does not fit all . . . Are you in a highly regulated industry?
Does your company have safety-sensitivepositions?
What are the effects of drug use on yourcompany?
What types of problems do you want tosolve?
Does every employee need to be tested?
Elements of a Drug Testing Program
Drug Free Workplace Policy
Supervisor Training
Employee Education
Drug Testing
Employee Assistance
Elements of a Drug Testing Program
Drug Free Workplace Policy Tailored to the Company’s specific needs
Effectively communicated to employees,and containing the following information: Why the policy is being implemented
Clear description of prohibited behaviors
Explanation of the consequences for violating thepolicy
Confidentiality
EAP information
Elements of a Drug Testing Program
Supervisor Training Elements of the policy
Conduct to be observed
Confidentiality
Reasonable suspicion
Post accident
Employee education Current Employees
Applicants
New Hires
Elements of a Drug Testing Program
Drug Testing
Pre-employment
Random
Reasonable suspicion
Post-accident
Worker’s compensation injury
Elements of a Drug Testing Program
What is ReasonableSuspicion?
BEHAVIOR APPEARANCE SPEECH
□ stumbled, clumsy, uncoordinated □ flushed complexion □ slurred, thick
□ drowsy, sleepy, lethargic □ sweating □ incoherent
□ agitated, anxious, restless □ unkempt grooming □ exaggerated enunciation
□ hostile □ bloodshot eyes □ loud, boisterous
□ unresponsive, distracted, withdrawn □ tearing, watery eyes □ cursing, inappropriate speech
□ tremors, shakes □ dilated (large) pupils □ excessively talkative
□ suspicious, paranoid □ constructed (pinpoint) pupils □ nonsensical, silly
ප�ŚLJƉĞƌĂĐƟǀ Ğ͕�Į ĚŐĞƚLJ� □ unfocused, blank stare
□ inappropriate, uninhibited behavior □ disheveled clothing BODY ODOR
□ frequent use of mints, mouthwash, □ alcohol
breath sprays, eye drops □ marijuana
Hypothetical #1
Walter White is a receptionist at asoftware development company.He’s distributing the mail and slamsthe mail cart into a co-worker,injuring the co-worker.
Can the company send Walter out fordrug testing?
Hypothetical #2
Jesse Pinkman works in a warehouseas a forklift operator. He drives theforklift into a pallet of goods, whichthen fall on him. He becomesinjured and submits a worker’scompensation claim.
Can the company send Jesse out fordrug testing?
Drug Testing Procedures
Who pays for the test?
How will the employee get to thetesting center?
Is the employee paid for their time?
What if the employee tests positive?Negative?
Maintain confidentiality
Consistent application
Consider documenting factssupporting reasonable suspicion
Drug Testing Procedures
Legal Challenges, Hurdles, Pitfalls
Invasion of Privacy
Intentional Infliction of EmotionalDistress
Retaliation
ADA Voluntary disclosure
Prior drug use or abuse v. current use
What Should You Do Today?
Review and revise policies Drug testing
Zero tolerance
Employee Assistance Programs (EAPs)
Train supervisors
Communicate with employees
A Brief History of Marijuana
Federal prohibition (1937-present)
Controlled Substances Act (1970)
Medical Marijuana (1996-present)
Starting in CA, now includes 20+ states
plus D.C.
Legalization (Nov. 2012-present)
Colorado and Washington legalize
Federal Prohibition:Controlled Substances Act
Marijuana Remains a Schedule INarcotic Manufacture, sale, distribution,
possession are still prohibited underfederal law
No DEA-certified doctor may prescribemarijuana
California’s CompassionateUse Act of 1996 Seriously ill persons who have their doctor’s
recommendation to use marijuana for medicalpurposes are authorized to use medical marijuanaupon the receipt of a physician’s recommendation
Includes treatment of: cancer, anorexia, AIDS,chronic pain, spasticity, glaucoma, arthritis,migraine, “or any other illness for which marijuanaprovides relief”
This likely meets the definition of a disability understate and federal disabilities laws
Marijuana in the Workplace
Marijuana is legal medically in 24 jurisdictions:
Marijuana is legal recreationally in four jurisdictions: AK, CO,OR and WA.
Several pending initiatives, which may be on the ballot for2016 in California. 55% of likely voters believe it should belegal.
• Alaska• Arizona• California• Colorado• Connecticut• District of Columbia• Delaware• Hawaii
• Illinois• Maine• Maryland• Massachusetts• Michigan• Minnesota• Montana• Nevada
• New Hampshire• New Jersey• New Mexico• New York• Oregon• Rhode Island• Vermont• Washington
Marijuana in the Workplace
Marijuana is decriminalized in 20 jurisdictions:
Marijuana usage is broad-based, particularly among youngerAmericans: 31.6% of people ages 18-25 and 9.2% of peopleage 26 and older used marijuana in 2013.
• Alaska• California• Colorado• Connecticut• District of Columbia• Delaware• Maine
• Maryland• Massachusetts• Minnesota• Mississippi• Missouri• Nebraska• Nevada
• New York• North Carolina• Ohio• Oregon• Rhode Island• Vermont
Marijuana in the Workplace
Generally, there is no legal protection foruse, possession or intoxication at work.
Some jurisdictions (California, Colorado,Delaware, Illinois, Montana, Nevada, NewHampshire, and Washington) explicitlyallow employers to enforce their drug-freeworkplace policies.
Marijuana in the Workplace
CA Health & Safety Code §11362.7-11362.83: “Nothing in this article shall require any
accommodation of any medical use ofmarijuana on the property or premises ofany place of employment or during thehours of employment…”
Ross v. Raging Wire (CASupreme Court 2008) Applicant for employment tested
positive for marijuana, used marijuanafor medical reasons
Evaluated on premises v. off premisesuse
Held that employer need notaccommodate on or off premises use
Coats v. Dish Network (COSupreme Court 6/15/2015)
Facts:
Mr. Coats engaged in medical, not recreational, marijuana use.
Mr. Coats’ medical use was pursuant to a valid CO medical marijuanalicense.
No allegation that Mr. Coats used, possessed or was intoxicated/impaired atwork.
Mr. Coats worked in a non-safety sensitive job.
Mr. Coats violated Dish Network’s “zero tolerance” drug policy when hefailed a random drug test.
Mr. Coats challenged his termination, alleging his marijuana use was “lawfuloff-duty conduct” under CO’s Lawful Activities Act, which prohibitsemployers from discharging employees for “engaging in any lawful activityoff the premises of the employer during nonworking hours.”
Coats v. Dish Network (COSupreme Court) - Holding
The Court held that for an activity to be “lawful” for purposesof CO’s Lawful Activities Act it must be permitted by bothstate and federal law.
Marijuana is illegal under federal law (ControlledSubstances Act).
As a result the CO Supreme Court rejected Mr. Coats’argument that his discharge was unlawful.
Coats v. Dish Network – Scope ofCase?
Lawful off-duty conduct statutes exist in approximatelythirty-five states.
This includes California – Labor Code section 96(k)
Coats v. Dish Network may be persuasive in those states,but it is not legally binding.
Marijuana laws (recreational and medical) vary widely stateto state.
For example, CO’s recreational marijuana statuteexplicitly allows employers to enforce their drug-freeworkplace policies.
What Do Medical MarijuanaLaws Mean for You? Most state medical marijuana laws provide that
employers are not required to accommodateuse, consumption, possession, sale, etc. ofmarijuana in the workplace
Employers in most states can restrict marijuanause by employees
Employers in Arizona, Connecticut, Maine, andRhode Island may be in a tough spot
Hypothetical #3
Mary Jane comes to work with redeyes and smells of marijuana. Can you send her for drug testing?
What if she tells you she’ll fail becauseshe is using medical marijuana becauseshe has cancer?
ADA Considerations forMedical Marijuana Users No duty to accommodate illegal drug use
Recovering addict provisions
But, may have a duty to engage in theinteractive process if the employer has reasonto believe the employee is disabled
May have to consider whether FMLA or other leave isappropriate for underlying medical condition
Should Marijuana Use bePermitted? Employees working impaired
Employees/customers could be injured
Protection of safe work environment
OSHA General Duty Clause: Section 5(a) “Each employershall furnish to each of his employees employment and aplace of employment which are free from recognizedhazards that are causing or are likely to cause death orserious physical harm to his employees.”
Marijuana use may reflect other issues
Elements of a Good Drug-Free Workplace Policy Confront medical and recreational use laws
Reference (explicitly) federal law (ControlledSubstances Act)
Prohibiting “working under the influence” is notenough Must make it impermissible to have “any detectable
level of any illegal controlled substance”
Which employees are covered?
When will tests occur?
Will you provide employee assistance (rehab)?
Sample Policy Language
“Note that it is the intention of the company to comply withstate and federal laws. Where state and federal law differ,however, the company will typically comply with federal law.(The company may be required to comply with federal lawfor employees in federally-regulated positions. Forexample, some state laws permit the use and possession ofmarijuana for medical and/or non-medical purposes.Federal law does not. In the absence of state law to thecontrary, the company considers marijuana to be an illegaldrug for purposes of this policy in all states – even thosethat allow for medical and/or non-medical use.”
Leave for Rehabilitation FMLA
Employers with 25+ employees must allowaccommodation for employees thatvoluntarily admit, but not for current use
EAP – Voluntary referral or as an alternativeto disciplinary process
Accommodation for Addiction
Questions?
More Questions?
Feel free to call or email:
Kathryn Gray
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
(858) 652-3070
Kathryn.Gray@OgletreeDeakins.com