How to Develop a Legally Sound Drug & Alcohol Testing Policy to Minimize Injuries in Your Workplace

Adele L. Abrams, Esq., CMSPLaw Office of Adele L. Abrams P.C.www.safety-law.com

Overview• Progress has been made overall in the battle

against substance abuse in the workplace.• Smaller employers (especially small employers

and construction companies) lag behind.• Reason? Perceived lack of resources and

administrative staff, and high employee turnover.• Some employers do not know where to start in putting

a program together. • Others lack information about the true consequences

of taking no position on this critical issue.

Overview• Failure to address issue proactively makes such

companies the employer of “last resort” for addicts and alcoholics.• Between 10 and 20 percent of the nation’s workers

who die on the job test positive for alcohol or other drugs• Moreover, 47 percent of industrial injuries are linked

to alcohol consumption and alcoholism. • 2008 Canadian study indicated that transient or shift

workers in mining, oil/gas may be more prone to substance abuse because of loneliness and lack of societal network.

Challenges to Prevention• Workers cover up the impaired actions of their colleagues because

of a reluctance to “narc” on buddies. • This can have grave consequences because if worker is too drunk

or stoned to work, he is probably too impaired to drive home! • If management is not notified and the individual is permitted to

leave the site, liability may result in the event of an accident. • Companies must make it clear that confidentiality of

“whistleblowers” will be protected.• Companies must protect the privacy of workers who come forward

voluntarily and seek help or who, post-testing, opt to enroll in a treatment program or use a company Employee Assistance Program (EAP).

Data on Illicit Drug Use

Data on Illicit Drug Use

Substance Abuse Impact• In addition to accident costs, substance abuse at work

increases:• absenteeism• judgment errors• medical insurance claims, and • decreases employee morale and productivity.

• 25 % of laborers and construction supervisors between the ages of 18 and 49 admit to illegal drug use in the past year!• 44 % of current illicit drug users report that they work for

companies with 1-24 employees, while only 13 % work for establishments with more than 500 employees.

Drug/Alcohol Testing• While drug testing may not be cheap, it is essential that this be

a component of the program.• Many companies test post-accident, as this provides a

legitimate basis for disciplinary action, and may offer a possible defense to worker’s compensation claims). • However, OSHA and MSHA are conducting interviews which

indicate post-accident drug tests are viewed by workers as “discipline,” and can impact reporting of injuries.

• Certain individuals (e.g., CDL drivers) may be subject to random testing.

• Some companies test individuals who behave in a manner that suggests the worker is impaired and poses a danger to himself and others. Caution: Collective Bargaining Agreements may have

specific provisions on drug/alcohol testing.

State Laws on Drug Testing• Most states set mandatory procedural requirements for employers who

subject employees or applicants to drug testing, which require employees to:

• provide employees with a written statement of their drug testing policy;

• require confirmatory tests in the case of an initial positive test result;

• allow employees or applicants who have tested positive to have the sample retested at their own expense;

• offer employees who test positive the opportunity to enroll in a drug rehabilitation program; and

• allow termination of employees testing positive only when they refuse to participate in such a program, fail to complete such a program, or violate the terms of the rehabilitation program.

• States like Connecticut and West Virginia require employers to have reasonable grounds to suspect that employees are using drugs before subjecting employee (other than employees in safety-sensitive positions or subject to federal drug testing requirements) to drug test.

Drug Testing Liability• EEOC entered consent decree with manufacturer, requiring it

to pay $750,000 to employees based on drug testing that violated the ADA. EEOC v. Dura Automotive Systems Inc. (MD-TN 2012)

• Employer had tested for “legally prescribed drugs” and required workers to disclose medical conditions for which medications were used as treatment.

• Employer made it a condition of employment for workers to cease taking medications, without evidence that the meds affected job performance, and suspended employees until they were “off the meds”• In addition to monetary settlement, employer also was enjoined

from making medical inquiries and conducting drug tests that were not job-related and justified by business necessity

Developing Substance Abuse Prevention ProgramsThere are five basic components of substance abuse prevention

programs:

1. A written policy2. Supervisor training3. Employee education4. Employee assistance5. Drug and alcohol testing

Supervisor Training• Supervisors need to be informed on how to identify an

addiction-related problem in advance of a catastrophic event, as well as how to get help for addicted workers. • Workers who are suspected of being “under the

influence” should be taken to a private area, and a second supervisor or witness should be present to document any action or statements. • Senior management must be notified of these events.• It may be necessary to suspend a worker until an

investigation can take place and/or until the worker completes treatment or is evaluated by the company EAP.

Dealing with Impaired Workers

• Impaired workers should be escorted home. • The cost of a single drug-or-alcohol related

accident to the company far outweighs the price of implementing a preventative program! • If a worker is caught dealing drugs on the

employer’s worksite, local law enforcement authorities should be contacted for assistance … don’t try to play deputy!

Federal Laws Addressing Substance Abuse • Some federal laws apply to the employer’s rights and

obligations with respect to maintaining a workplace that is free of substance abuse, while also handling human resource issues legally.

• Drug-Free Workplace Act of 1988• Americans with Disabilities Act• Family & Medical Leave Act

In addition, companies that perform work under government contracts may be subject to the requirements of the Rehabilitation Act of 1973 (Section 503 pertains to employment of persons with disabilities, including those addicted to drugs or alcohol).

Americans With Disabilities Act

• Applies to companies with 15+employees (analogous state laws may cover smaller companies)• Enforced by Equal Employment Opportunity Commission

(EEOC) or by state human rights agencies• Drug addiction and alcoholism are covered disabilities

“affecting major life activities” BUT little case law to establish true “bright line” tests on what employers can and cannot do ... And MMJ may complicate what is considered “active addiction/use.” • The case precedent may vary depending upon which Court of

Appeals Circuit controls in your area.

Americans With Disabilities Act

• Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.

• The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements, which may differ from federal standards). • This is where MMJ can present tricky issues … more to come on

that!• The “direct threat to safety” defense can only be raised if there is a

tangible (not speculative) threat – again MMJ positive tests (absent impairment) become an issue …

• Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.

• Employers may not discriminate against drug addicts who are not currently using illegal drugs and have been rehabilitated or have a history of drug addiction.

OSHA/MSHA Enforcement• OSHA can enforce under General Duty Clause (Sec. 5(a)

(1) of OSH Act) for permitting employees to be impaired at the worksite – “recognized hazard”• Typically used in accident cases where tox screens are

positive.• 30 CFR 56/57.20001: “Intoxicating beverages and

narcotics shall not be permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job.”• No analogous rule for coal. • MSHA commenced a rulemaking in Bush

administration to set coal standard and mandate drug tests (similar to CDL) at all mines but rule was taken off regulatory agenda in Obama administration.

DOT Rules for Commercial Drivers• Omnibus Transportation Employee Testing Act of

1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines and other transportation industries. • The rules apply to operators of commercial

motor vehicles, both intrastate and interstate.

DOT Rules - CDL• DOT publishes rules on who must conduct drug and alcohol tests,

and these are codified at 49 CFR Parts 40 and 382. See http://www.dot.gov/ost/dapc/odapc_faq.html for answers to common questions.

• Required tests include pre-employment/pre-duty, reasonable suspicion, random, post-accident, and return to duty.

• “Commercial Motor Vehicle” means a motor vehicle used in commerce to transport passengers or property if the vehicle• Has a gross combination weight rating of 26,001 or more pounds, or • Is of any size and is used in the transportation of materials found to be

hazardous for the purposes of the Hazardous Materials Transportation and which require the motor vehicle to be placarded.

DOT Penalties• Penalties are assessed administratively by the FMCSA for

violations of parts 382 and 40 and administrative orders may be issued to bring about satisfactory compliance.• Criminal penalties may be sought against a motor carrier

(employer), its officers or agents, a driver, or other persons when it can be established that violations were deliberate or resulted from a willful disregard for the regulations. • Criminal penalties may be sought against an employee

only when a causative link can be established between knowing and willful violation and an accident or the risk thereof.

Rec/Med Marijuana Laws• 23 states & Washington, DC currently have legalized

some form or another of medical marijuana use and 4 (AK, CO, OR, and WA) have legalized recreational use (DC too … still at issue). • Others (e.g., MD) have decriminalized use and

possession, making it akin to a parking ticket.• U.S. Supreme Court issued a key decision in June 2005

confirming that marijuana remained an illegal drug under federal law no matter what state laws said (Gonzalez v. Raich) – will this become “old law” in light of legalization?

Recreational Marijuana Laws• In Obama administration, official position is not to

prosecute in states where use is legal (at least for possession and with respect to legal dispensaries).• New recreational laws in Alaska and DC state explicitly

that nothing requires employer to permit or accommodate use, consumption, possession in workplace, or to have policies restricting use by employees. • New Oregon rec. law provides it does not amend any

state or federal law regarding employment matters, and permits federal contractors & grantees to prohibit use as needed to satisfy federal requirements.• Colorado Amendment 64 provides that nothing is

intended to require employer to permit or accommodate use in workplace.

Recreational Marijuana• Too soon to have reported cases on employment terminations

based on positive tests triggered by recreational marijuana• States grappling with how to determine “impairment” for DUI

purposes – could have spill over into workplace once nanogram level is established

• The recreational marijuana laws do not specifically change employer rights in any way – zero tolerance policies can be enforced (for now)

• But rates of (legal) marijuana use expected to increase (or perhaps people will be more honest in surveys!)

Employers should amend policies to clarify if/that there is zero tolerance for RMJ and MMJ use (esp. if current policy just outlaws “illegal drugs”) … and clarify that even if legal, not permitted to be under the influence while OTJ.

Legal Decisions – MMJ Early Cases• In 2008, the Oregon Court of Appeals dealt a blow to

employers fighting medical marijuana in the workplace, letting stand an administrative decision which had granted a victory to a medical marijuana user (Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries). • California Supreme Court rejected a lawsuit brought by

an employee who was terminated shortly after his employer learned that he had tested positive for marijuana. According to the court, employers have the right to conduct preemployment drug tests and to fire, or refuse to hire, individuals who test positive for illegal drugs – even if they are used for medicinal purposes. Ross v. RagingWire Telecommunications, Inc., California Supreme Ct. 2008• In Johnson v. Columbia Falls Aluminum Company, the

Montana Supreme Court ruled that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act. (2008).

Legal Decisions - MMJ• Coats v. DISH Network, Colo. Ct. of Appeals (2013).• Reinforced right to terminate “positive” employee who held MMJ

card, even in absence of evidence of impairment on the job.• On appeal …

• Roe v. TeleTech Customer Care (Colorado 2011).• The Washington State Supreme Court held that an employer was

not regulated by the Washington State Medical Use of Marijuana Act, and did not protect and employee (or prospective) employee from being discharged after a positive drug test.

• Casias v. Wal-Mart Stores, Inc., 6th Circuit, 2012)– The court found in favor of Wal-Mart. The court held that Casias

had no claim of wrongful discharge as the Michigan’s Medical Marijuana law does not regulate private industry. The law only provides limited protection from state prosecution.

Legal Decisions - MMJ• The case law establishes a clear line that at this point, the

private sector and employers are not regulated or controlled by state medical marijuana laws (but check statutory language). – There are current attempts in states, such as Maine, to limit the

ability of private industry to terminate employees. – Decision in Michigan held that being fired for MMJ use was not

“misconduct” and did not disqualify former employees from receiving unemployment insurance benefits. – Employer did NOT allege that the workers were under influence

while at work.

– The legal precedent outlines that in the federal realm, marijuana is still illegal and employers cannot be forced to permit it, but must continue to follow legal testing procedures and requirements.

States with Protections• Maine and Rhode Island have also attempted to protect

workers from termination due to medical marijuana consumption. – These laws are similar to one another and prohibit employers

from discriminating against employees who legally use medical marijuana.

– However these states do not offer explicit protections for users who test positive during drug testing.

– These have not been tested in court at this time, but Maine has a possible claim in progress.

Rhode Island MMJ Case• Filed 11/14 by ACLU against Darlington Fabrics, claiming

discrimination against candidate because she disclosed use of MMJ for migraine headaches.

• Candidate had disclosed use and promised not to come to work under influence but was told she would not be hired because of current use of MMJ.

• She is NOT alleging discrimination under federal ADA, but under RI MMJ Act, which prohibits employment discrimination based on individual’s status as MMJ cardholder.

• States with similar protections: AZ, CT, DE, IL, ME, MN, NV and NY– Arizona and Delaware laws are similar to RI and seek to prevent

discrimination in “hiring, termination, or any term or condition of employment, or otherwise penaliz[ing] a person…status as a cardholder” or due to positive drug test for marijuana.

Recent Maine Case Law• Thomas v. Adecco USA, Inc., 2013 WL 6119073, United States

District Court District of Maine, Nov. 21, 2013. – An employee was not rehired by an employer for a

manufacturing (smoke detectors) job. Before returning, she disclosed that she was using medical marijuana, was drug tested and tested positive. Employee was not rehired due to positive drug test.

– This was a preliminary decision on jurisdiction. The defendant company did not rehire an employee after becoming aware of the employees use of medical marijuana.

– The employer moved to have the case heard in Federal Court, while the employee attempted to remand the matter to Maine state court.

– The District Court held that federal jurisdiction was proper. The decision on the merits is still pending.

Arizona and Safety-Sensitive Positions• Arizona currently addresses safety-sensitive positions with its

medical marijuana law.– Employees in safety-sensitive positions are not protected from

termination or discharge due to use of marijuana.– Employees in safety-sensitive positions can request to be

assigned a “non-safety-sensitive” position, and employers may transfer the employee, but the employee does not have the right to demand the pay while performing the safety-sensitive position.

Connecticut MMJ Law• The Connecticut bill was signed into law on May 31, 2012, and

became effective on October 1, 2012. • The law outlines requirements for registration, including an age

requirement of 18.• It outlines qualified conditions, which are similar to other states

in the region, including but not limited to, cancer, Parkinson’s and Crohn’s diseases, and post traumatic stress disorder.

• CT law specifically bars employers from refusing to hire, discharging, penalizing, or threatening individuals based on MMJ use.

What is Impairment???

• Many employers use 50 ng for MJ• Cottage industry growing on how to thwart drug tests• Typical types: urine, blood, hair, saliva

• Colorado, Washington and other states where now legal will need to address through DUI laws … • Growing field of forensics to determine if workplace

accident victims were impaired – consequences for worker’s compensation, OSHA/MSHA liability, affirmative defenses in wrongful death and personal injury cases of contractors injured OTJ

FACTS About Substance Abuse• FACT: The majority (74 percent) of current (past month) illicit drug

users 18 or older are working either full-time or part-time. • This means that 12.4 million drug addicts are actively employed in the

workplace, with the highest percentage working in the construction industry.

• FACT: The job classification with the highest rate of active drug use (17.2 percent) and illicit drug use within the past year (25.9 percent) is “Construction Supervisor.” An additional 13 percent of supervisors admit to current heavy alcohol use. • That means the unsafe and negligent actions of the drug-using supervisor will be

directly imputed to the employer for purposes of tort liability and MSHA/OSHA enforcement actions, because those individuals are considered “agents” of management.

• FACT: The trend is toward legalization of MMJ (or possibly all marijuana) and better tests may be needed to gauge impairment versus “positive tests” … but evolving case law suggests that employers currently can terminate (most) employees legally taking MMJ if they are in safety sensitive positions.

Bottom Line• Employer seeking protection under a state MMJ or

recreational statute should adopt and publish substance abuse prevention policies that indicate:• types of testing required• circumstances under which applicants/employees will

be tested• consequences of failing a test• testing methodology to be used (hair, saliva, urine,

etc.)• information to be provided to tested employee upon

request

Conclusion• Accidents and injuries create severe hardships, not just for the victims,

but also for the employer. • A serious drug/alcohol related incident can shut down a small operation

due to the financial impact from litigation. • There is clear evidence that utilization of a substance abuse prevention

program will ultimately save lives of the substances abusers and those they work with.

If any employee self-identifies as having a medical marijuana card, you should start an interactive process with that employee to determine whether a true disability is present and whether other accommodations besides drug use will allow for the performance of essential functions.

• Don’t let your company be the employer of choice for active illegal drug addicts and alcoholics!

Burning Questions?Adele L. Abrams, Esq., CMSP301-595-3520safetylawyer@aol.com