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Structuring Workplace Drug Policies:
Employer Pitfalls in the Age of Marijuana
Legalization and the Opioid Crisis
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TUESDAY, AUGUST 14, 2018
Presenting a live 90-minute webinar with interactive Q&A
Mark S. Goldstein, Attorney, Reed Smith, New York
David L. Zwisler, Of Counsel, Ogletree Deakins Nash Smoak & Stewart, Denver
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Who Is Affected By Drug Use?
• Over 21 million Americans are living with
substance use disorder, according to the
U.S. Surgeon General. That is more than
the total number of people living with of
cancer and more than the population of
the state of New York.
6
Drugs at Work
Three-quarters of those struggling with addiction to alcohol, pain medication, marijuana and other substances are employed.
• Marijuana– Also called “weed,”—and a vast number of other
slang terms—is a greenish-gray mixture of the dried flowers of Cannabis sativa.
• Opioids– According to the National Institute on Drug Abuse:
Opioids are a class of drugs that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription, such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others.
7
Employment Issues Pertaining to
Drugs Use
• Drug use, including the use of opioids, cause both a health and safety issue in the workplace including increased:
– workplace incidents;
– workers’ compensation costs;
– length of worker disability;
– tardiness; absences; and lost work time;
– Impairment; and
– workplace theft.
8
First, A definition
Prescription drug abuse: the intentional
use of a prescribed medication: (1)
without a prescription; (2) in a way
other then prescribed; or (3) for the
experience or feeling it causes.
9
And another
Opioids: (For purposes of your medical
review officer) morphine, codeine,
heroin, hydrocodone, hydromorphone,
oxycodone, and oxymorphone.
10
An Overview of the Crisis
• Epidemic and nation’s fastest growing drug problem– Crosses broad spectrum: age, sex, ethnicity, economic status
• A perfect storm– Misperception of risk
– Wide availability, legally and otherwise
– Broad use and very addictive substances
– Policy and law enforcement focus elsewhere
• Expensive
11
National Epidemic
• Annually, over 16 million Americans, ages 12 and up, take some type of prescription medication– Adults: painkillers, anti-depressants
– Youths: stimulants
• CDC: more people die every year from prescription painkillers than from heroin and cocaine combined
12
National Epidemic (cont’d)
• Abusers are urban, rural, across ethnic groups,
economic classes, male and female
• Women particularly at risk – the rise of the single
parent household
– Women more likely than men to be prescribed pain
medication and at higher doses
– Women more likely to be given psychotherapeutic
drugs (anti-depressants and anti-anxiety medications)
– People who overdose likely to be taking combination
13
National Epidemic (cont’d)
• Young adults (18-25) are biggest
abusers– 1,700 died in 2014 (4 fold increase over 1999)
– For each death
• 119 emergency room visits
• 22 treatment admissions
14
OPIOID SALES
US Summary on Retail Drug Purchases by Weight - Pharmacies (ARCOS Report 7)*
2006 2017
Total grams Average grams Total grams Average grams
Change in Total Grams
Change in Average Grams
Morphine 14,679,305 259.15 15,050,790 242.95 102.53% 93.75%
Codeine 16,955,443 277.62 15,427,479 234.04 90.99% 84.30%
Heroin
Hydrocodone 28,229,628 454.72 25,666,888 388.03 90.92% 85.33%
Hydromorphone 694,391 14.8 1,170,251 20.5 168.53% 138.51%
Oxycodone 34,632,256 585.79 46,519,135 707.95 134.32% 120.85%
Oxymorphone 57,722 4.99 1,099,737 31.14 1905.23% 624.05%
*https://www.deadiversion.usdoj.gov/arcos/retail_drug_summary/
15
Employment Issues Pertaining to
Drugs Use
• Employers are adopting practices and policies to address opioids and other drugs in the workplace, and to identify and treat employee opioid abuse and misuse within the workplace.
– Increased drug testing (including opioids)
– Further investments into management and employee education
– Programs to increase and ensure confidential access to help and treatment
16
Legislation Pertaining to Drugs Use
– Employer Exemptions &
Obligations
• Many states now allow the regulated use of
medical marijuana
• With the allowance of legal drug use comes
increased drug use legislation
• Thus, many states have supplemented their
new marijuana-use laws with various
employer exemptions and obligations
17
Legislation Pertaining to Drugs Use –
Employer Exemptions & ObligationsState Employer Exemption/Obligation
Alaska Employers are not required to accommodate medical marijuana
use in any place of employment. (Alaska Stat. Ann. §
17.37.040(d)(1)).
Arizona Employers generally are authorized to take adverse employment
actions for positive drug tests or failure to take drug tests. (Ariz.
Rev. Stat. § 23-493.05). Marijuana use during work is grounds for
termination. (Ariz. Rev. Stat. Ann. § 36-2813).
Florida Florida's law does not permit individuals to use medical marijuana
at their place of employment, unless permitted by the employer
(FL ST § 381.986(1)(j)(5)(c)).
Massachusetts Allowing off-site use of medical marijuana despite an employer's
drug-free workplace policy may be a reasonable accommodation
under Massachusetts' disability discrimination law, if it is not an
undue hardship on the employer's business. (See Barbuto v.
Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Mass., 2017).)
18
Legislation Pertaining to Drugs Use
– Employer Obligations• Cities, too, are passing legislation to
regulate employer obligations regarding marijuana use when it intersects with certain safety-sensitive positions:– Alabama: Montgomery. Testing for employees
in safety-sensitive positions: Taxicab, limousine, and alternative transportation companies, and horse-drawn carriage companies.
– Alaska: Anchorage. Testing, pre-licensing, for reasonable cause, post-accident, and post-citation for chauffeurs of taxis, limousines, and vehicles for hire.
19
Legislation Pertaining to Drugs Use
– Employer Obligations• California: San Francisco. Testing if reasonable
grounds to believe that an employee is impaired on the job; impairment presents a clear and present danger; and employer provides the employee the opportunity to have the sample tested by a testing facility; and a reasonable opportunity to rebut or explain the results.
• Connecticut: Bridgeport, New Haven, Hartford, and Stamford. Require candidates for their police forces to undergo drug testing as part of the application process.
20
Legislation Pertaining to Drugs Use
– Employer Obligations
• Illinois: Chicago. Requires rideshare companies to have a zero-tolerance drug testing policy for drivers; certain drivers receive periodic drug tests.
• Mississippi: Jackson. Employers that operate vehicles for hire must randomly test drivers for narcotic or alcohol usage and submit the results to the license and permit division of the police department.
21
Legislation Pertaining to Drugs Use
– Employer Obligations• New Mexico: Albuquerque. Applicants for
city employment in safety-sensitive positions are subject to pre-employment drug testing.
• Tennessee: Memphis. Subjects drivers for hire and wreckers to random drug and alcohol tests on a monthly basis.
• Tennessee: Nashville. Horse-drawn carriage driver applicants must include with their applications a current federal DOT drug and alcohol test result.
22
Legislation Pertaining to Drugs Use
– Employer Obligations• Texas: Austin & Dallas. All vehicle-for-hire
companies must have a zero-tolerance drug and alcohol policy.
• Texas. Houston. All drivers licensed to operate a vehicle for hire are to be subject to drug screening when reasonable suspicion exists.
• Texas. San Antonio. Vehicle for hire operators to establish certain standards for drug and alcohol testing for employees and drivers.
23
Legislation Pertaining to Drugs Use
– Employer Obligations• Utah: Salt Lake County. Requires
employees holding a commercial driver's license or performing safety sensitive duties to undergo random alcohol and drug testing.
• Washington: Spokane. Applicants for a for-hire driver's license must pass an annual drug screening test at their own expense.
• West Virginia: Charleston. Requires drug and alcohol testing for its employees who are commercial drivers, or working in other safety sensitive positions.
24
Impact of Marijuana
Legalization on the Hiring
Process
25
Impact of Marijuana Legalization
on the Hiring Process• A growing number of states afford protections to registered medical
marijuana users, including:
• Arizona: Ariz. Rev. Stat. Ann. § 36-2813: Employer may not discriminate against a person because of his or her status as a cardholder or a positive drug test for marijuana unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.
• Arkansas: Arkansas Constitution Amendment 98, § 3(f): “An employer shall not discriminate…based upon the individual's past or present status as a qualifying patient or designated caregiver.”
• Connecticut: Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 339 (D. Conn. 2017) (Connecticut’s medical marijuana law prohibits employer from discriminating against employee based on authorized use of medicinal marijuana outside the workplace)
• Delaware: Del. Code Ann. tit. 16, § 4905A(a)(3)(a): Employer may not discriminate against a person because of his or her status as a cardholder or a positive drug test for marijuana unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment
26
Impact of Marijuana Legalization
on the Hiring Process• A growing number of states afford protections to registered
medical marijuana users, including (continued):
• Illinois: 410 Ill. Comp Stat. 130/40: Employer cannot penalize “a person solely for his or her status as a registered qualifying patient or a registered designated caregiver.”
• Maine: 22 Me. Rev. Stat. § 2423-E(2): Employer may not refuse to employ “a person solely for that person’s status as a qualifying patient or a primary caregiver.”
• Massachusetts: Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 467, 78 N.E.3d 37, 47 (2017) (employee stated claim under Massachusetts disability discrimination law where employer fired her for medical marijuana use)
• Minnesota: Minn. Stat. § 152.32(3)(c): Employer may not discriminate against a person because of their enrollment in the medical marijuana program or positive drug test for cannabis, unless the patient used, possessed, or was impaired on the premises or during the hours of employment
27
Impact of Marijuana Legalization
on the Hiring Process• A growing number of states afford protections to registered
medical marijuana users, including (continued):
• Nevada: Nev. Rev. Stat. § 453A.800(3): “[E]mployer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card.”
• New York: Taxi & Limousine Comm’n v. W.R., OATH Index No. 2503/17 (N.Y.C. Office of Admin. Trials & Hearings, July 14, 2017) (employee was afforded protections for his certified medical use of marijuana under the New York Compassionate Care Act)
• Rhode Island: Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181, at *10 (R.I. Super. 2017) (employer violated Rhode Island medical marijuana act by refusing to employ a person solely for his or her status as a cardholder)
28
Impact of Marijuana Legalization
on the Hiring Process• However, other states have found that employees who engaged in medical
marijuana use are not protected from employer discipline, including:
• California: Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 174 P.3d 200 (2008) (California Fair Employment and Housing Act did not require employer to accommodate employee who used medicinal marijuana)
• Colorado: Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015) (no claim under Colorado’s statute prohibiting employment discrimination on the basis of lawful activities outside of work, since marijuana use is still unlawful under federal law)
• Hawaii: Lambdin v. Marriott Resorts Hosp. Corp., No. CV 16-00004 HG-KJM, 2017 WL 4079718, at *10 (D. Haw. Sept. 14, 2017) (state law decriminalizing marijuana use does not create an affirmative requirement for employers to accommodate medical marijuana use)
• Michigan: Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012) (Michigan Medical Marihuana Act (MMMA) did not restrict private employer's ability to discipline employee for medical marijuana use)
29
Impact of Marijuana Legalization
on the Hiring Process• However, other states have found that employees who engaged in medical marijuana use
are not protected from employer discipline, including (continued):
• Montana: Johnson v. Columbia Falls Aluminum Co., LLC, 213 P.3d 789 (Mont. 2009) (Montana’s Medical Marijuana Act does not provide an employee with an express or implied private right of action against an employer)
• New Mexico: Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225 (D.N.M. 2016), appeal dismissed (Mar. 25, 2016) (New Mexico's Compassionate Use Act, which authorized use of medical marijuana, did not mandate that employers accommodate medical marijuana use)
• Oregon: Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 230 P.3d 518 (2010) (employer did not violate state disability discrimination law when it discharged employee for medical marijuana use)
• Washington: Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 171 Wash. 2d 736, 257 P.3d 586 (2011) (Washington State Medical Use of Marijuana Act did not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use)
30
Impact of Marijuana Legalization
on the Hiring Process
• Employers in states that protect employees who use medical marijuana may have to engage in an interactive process to see if a reasonable accommodation can be made
• Notably, employers are not required to allow marijuana use at the workplace or to allow employees to come to work under the influence of marijuana
31
Financial Impact of Excluding
Candidates who use Marijuana
32
Financial Impact of Excluding
Candidates who use Marijuana
• April 2017 Marist Poll: Estimated 55 million adults in the United States currently use marijuana, and an additional 78 million have tried marijuana at some point1
• In other words, 52% of American adults have tried marijuana, and 22% currently use it
• These numbers are likely to increase. Michigan, Missouri, North Dakota, Oklahoma, and Utah all have marijuana ballot initiatives in 20182
33
Financial Impact of Excluding
Candidates who use Marijuana• The current U.S. unemployment rate is 3.9% and
has not been higher than 5% since August 20151
• Can employers afford to automatically exclude candidates who test positive for marijuana use, given the tight labor market?
• Number of employers in Colorado who test for marijuana dropped from 77% in 2014 to 62% in 20162
• Employers may also face lawsuits (and related costs, such as attorney’s fees) under state medical marijuana laws for excluding candidates who are authorized medical marijuana users
1 https://data.bls.gov/timeseries/LNS140000002 https://www.denverpost.com/2017/02/03/colorado-business-pot-drug-tests/
34
Financial Impact of Excluding
Candidates who use Marijuana• Employers may want to reconsider taking an “all-
or-nothing” approach to marijuana use
• Instead of automatically disqualifying an individual who tests positive for marijuana, consider the following:
• Is the applicant an authorized medical marijuana user?
• Is the role safety-sensitive (manufacturing, driving, etc.)?
• Will the applicant be able to limit his or her use of marijuana so that he or she will not be under the influence of marijuana while at work?
35
Opioids – Why is This Happening?!
• Societal acceptance / quick fix society– Perception of safety
• Wide availability– Stimulants prescriptions up from 5M to 45M and painkiller
prescriptions up from 75.5M to 209.5M
– For teens, 70% get prescription drugs from friend or relative and target online sales
• Not on law enforcement / employer radar
• May of 2017, State of Ohio sued big five pharmaceutical companies
• February of 2018, State of Ohio sued four opioid distributers
36
The Cost
• Workplace insurers spend an estimated $1.4
billion on narcotic painkillers annually
• Non-medical use of prescription medication
costs health insurers up to $72.5 billion in
direct health care costs
• Lost productivity?
– Difficult to measure, but the number of employees
testing positive for prescription painkillers has
increased by more than 40% since 2005
– $78.5 billion in economic costs directly associated with
just opioids
37
The Cost (cont’d)
• Loss of life: Fatal doses of prescription drugs outnumber deaths from all other illicit drugs combined
–More women die of overdoses from painkillers than from cervical cancer or homicide
38
Prescription Drugs and Safety and
Health Law
• Prescription drug abusers = sleepy, anxious,
depressed or confused workers = a safety
risk to themselves and others
• Does a feasible means exist to reduce the
hazard?
– policies, training, enforcement
• Self-reporting requirements with teeth
• Post-accident review/testing not enough
• Address in pre-qualification for contractors
39
Interplay of ADA and FMLA
with Workplace Drug Policies
40
Current Legal Status of Marijuana
• Several states have made some
movement toward partial or total
legalization of marijuana – including
California
• Still banned under federal law
– Controlled Substances Act
• Schedule I drug – THC
41
State Medical Marijuana Laws
42
Current Legal Status of Opioids
• Banned for recreational use under federal law
– Controlled Substances Act
• Schedule I drug – drugs with “high potential for abuse” with “no currently accepted medical use in treatment in the United States” that cannot be safety dispensed under a prescription
– See, e.g., LSD, heroin
• Schedules II, III, IV, and V – substances that have recognized medical uses and that may be manufactured, distributed, prescribed, dispensed, and possessed in accordance with the CSA
– See, e.g., prescription opioids like oxycodone, codeine, morphine
43
Current Federal Agency Policies• Department of Justice – Sessions Memorandum
– Outlines federal enforcement priorities
– Overturned Obama-era “Cole Memorandum,” which ultimately left discretion to local US Attorneys
– Sessions memo
• “In deciding which marijuana activities to prosecute under these laws with the [DOJ’s] finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions … these principles require federal prosecutors deciding which cases to prosecute weigh all relevant considerations, including federal law enforcement priorities set forth by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
44
Disability Law Primer
• Federal Americans with Disabilities Act
(ADA) and state anti-discrimination laws:
– Prohibit disability discrimination
– Require employers to
• make reasonable accommodations
• to qualified employees/applicants
• so they can perform the essential functions of
the job45
Who is “Qualified”?
• “Qualified” means the employee satisfies the requirements of the position, in terms of education or experience, and that he or she can perform the essential functions of the job, with or without reasonable accommodation
• Under the ADA, if you are currently engaging in the “illegal use” of drugs, then you cannot be “qualified”
46
“Illegal Use” Exclusions• “Illegal use” does NOT include
– Use of drugs “taken under supervision by a
licensed health care professional,” or
– “other uses authorized by the Controlled
Substances Act or other provision of Federal
law”
47
Family Medical Leave Act (FMLA)
Primer
• An employee with a “serious health
condition” is entitled to FMLA leave. 29
C.F.R. § 825.114.
• FMLA does not protect medical drug use,
possession, or impairment in the workplace
• However, a condition requires an employee
to take time off from work for medically
prescribed drug use, that time off would be
covered by FMLA.
48
Family Medical Leave Act (FMLA)
continued
• An employer’s drug free workplace
policies may still allow drug testing or
require a fitness for duty examination
upon returning to work from related FMLA
leave
• BUT this could be a liability – employee
could claim that resulting termination
was due to retaliation for using FMLA
49
Medical Marijuana Laws &
Employment
• New Jersey – “Nothing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14 (New Jersey Compassionate Use Medical Marijuana Act (CUMMA))
• Oregon – Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010) (holding federal law preempts state medical marijuana law)
50
• Connecticut
– Medical marijuana statute specifically protects
employees and applicants from discrimination
– Noffsinger v. SSC Niantic Operating Co. LLC, No.
3:16-cv-01938 (JAM), 2017 U.S. Dist. LEXIS
124960 (D. Conn. Aug. 8, 2017) (rejecting
preemption arguments, in part, because states
“possess broad authority to regulate” the
employment relationship)
Medical Marijuana Laws &
Employment (cont’d)
51
Increasing Enforcement on Drug-
Related Cases
• ADA EEOC Drug Addiction filings– 1997 – 144 filed / 16 merit findings (11%)
– 2009 – 120 filed / 26 merit findings (22%)
– 2016 – 131 filed / 46 merit findings (35%)
• ADA EEOC Drug Addiction Monetary Recovery– 1997 – $59,381 (10 people) / $5,938 average
– 2009 – $446,606 (22 people) / $20,300 average
– 2016 – $643,500 (31 people) / $20,758 average
52
Increasing Enforcement• EEOC filings
– Car dealership in Scottsdale (2017)
• Rescinded job offer after pre-employment drug test revealed prescription drug use to treat disability
• Settled - $45,000
– Temporary Agency in Maryland (2016)
• Placed production laborer
• Pre-employment drug test
• Recovering addict
• Medically supervised treatment program
– Methadone (used to treat opioid addition / heroin)
• Refused to hire
• $50,000 settlement
53
Increasing Enforcement (cont’d)
• EEOC filings
– Car Manufacturer in Maryland (2017)• Recovering drug addict
• Conditional offer of employment
• Drug test
• Supervised medication-assisted treatment
– Suboxone (used to treat opioid addition)
• Rescinded job offer
– Fast food franchise in Georgia (2017)
• Existing Store Manager
• Taking medication for bi-polar disorder
• Referred to medication in obscene terms
• Required employee to flush medication down toilet
• Employee said she would continue to take medication
• Terminated
54
Increasing Enforcement (cont’d)
• EEOC filings
– Home-based Care Provider in Louisiana (2017)
• Caregiver disclosed HIV
• Medication interfered with drug screen results
• Preliminary results indicated possible illegal drug use
• Confirmation test refuted preliminary positive
• Terminated for illegal drug use
• EEOC alleges termination was for HIV status
55
Best Practices for Workplace Drug
Testing and Drug Policies
56
Understanding Drug Testing
• Blood, urine, saliva, hair, sweat (detection vs.
impairment)
• Initial screening typically followed by confirmation
testing
– Medical Review Officer
• Interpreting the data
– Interferences
– Drug Interaction
– Timing of the test
– Tolerance and accommodation
• Using the data for decision-making
57
The Mechanics of Testing*
Lab-based urine Instant Urine Oral Fluid Hair
ProcessLab and facility collection.
On-site collection and facility.
On-site collection and facility.
On-site collection and facility.
Collection Time 15-20 minutes 15-25 minutes 3-10 minutes 5-10 minutes
Common benefits
Adulteration testing and variety of drug testing available
Fast results and reduced downtime. Some adulterant testing.
Observed collection. Reduce opportunity for tampering.
Observed collection.Reduced opportunity for tampering. Longest lookback period.
*Quest Diagnostics58
Mechanics of Testing (cont.)*Federal Cut Off Levels Detection Window
Amphetamines 500/250 ng/ml
URINE 24 - 72 hoursORAL 24 - 36 hoursHAIR 1 - 3 months
Cocaine 150 / 100 ng/ ml
URINE 24 - 72 hoursORAL 24 - 36 hoursHAIR 1 - 3 months
Opiates 2000 / 2000 ng / ml
URINE 24 - 72 hoursORAL 24 - 36 hoursHAIR 1 - 3 months
PCP 25 / 25 ng / ml
URINE 1 - 5 days (occasional use) up to 30 days (habitual) ORAL 24 - 26 hours HAIR 1 - 3 months
THC 50 / 15 ng / ml
URINE 1 - 3 days (infrequent use) up to 30 days (habitual) ORAL (<24 hours) HAIR (1 - 3 months)
*Quest Diagnostics59
Mechanics of Testing (cont.)*
The MRO• Amphetamines – Prescription (Adderal, Elderpryl) and OTC (some inhalers such
as Vicks VapoInhaler); positives for MDMA (Molly Ecstasy) or MDA (Sally).
• Cocaine – No prescription medications. May be used in topical application.
• Opioids – Prescription medicines. Poppy seeds. Heroin (6-AM) metabolites.
• PCP – No prescription and no OTC.
• THC – Schedule I. Will be reported as positive. Marinol exception.
• Dilutes / substituted specimens / adulterated specimens / invalid specimens.
*SAMHSA MRO Guidance Manual60
Drug testing results*
*Quest Diagnostics61
Drug testing results*
*Quest Diagnostics62
Workplace Drug Tests
• Remain legal even when states have
legalized recreational marijuana use
63
When and How to Drug Test
• Pre-Employment: Only after conditional offer of employment has been made
• ADA limitations to pre-employment testing: – An employer may not ask questions about a disability or
require medical examinations until after the employer makes a conditional job
– Any disability-related questions or medical examination conducted after a job offer has been made are acceptable so long as the employer treats all individuals entering the same job category the same
– Employers must make reasonable accommodations when administering the tests to the individuals with known physical or mental limitations
64
When and How to Drug Test
(continued)• Reasonable Suspicion: Have a policy that clearly
defines what type of behavior justifies drug testing and have supervisors objectively document that behavior
• Post-Accident: Have guidelines for what type of accident triggers testing and how soon after the accident testing should occur
• Random: Ensure that the process of selection is indeed random (consider a computer-generated selector)
• Periodic: While regularly scheduled tests allow employees to prepare, they also seem to be the least controversial
65
Drug testing results*
*Quest Diagnostics66
Drug Testing (cont’d)
• Assessing concentration levels – does it matter?
– Can be considered unreliable
– Scientifically not as clear-cut as tests for alcohol impairment
• Federal contractors – Drug-Free Workplace Act
• Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012) (upholding employee’s termination because of a positive drug test for medical marijuana post workplace accident)
67
Recreational Marijuana &
Employment• When developing workplace drug policies and
determining consequences of violation, keep in mind:
– Off-Duty Conduct Laws
• 29 states and DC have these laws in some form
• Majority are specifically tied to legal use of tobacco (but some apply to the use of all lawful products)
• Coats v. Dish Network, LLC, 350 P.3d 849, 851, 2015 CO 44 (Colo. 2015) (dismissing wrongful termination claim based on off-duty conduct law and positive drug test for medical marijuana)
68
Drug Testing and Policies – Best
Practices• If you are going to require potential or current
employees to submit to drug testing…– Develop a written policy
– Become knowledgeable about the technology used by your drug test provider to ensure it is up to date and consistent with applicable state and federal guidelines
– Strictly limit access to drug test results to those executives who need the information to make safety and personnel decisions
– Keep drug test results completely separate from any employee personnel files
– Have a consistent plan and policy for how positive test results will be handled
– Know the state and local laws that apply to your company!
69
Drug Testing and Policies – Best
Practices
▪ With Opioids, unlike illegal drugs, barring not a solution
▪ Expansion of employer testing program
▪ Education of workers
▪ Clearly stated rules regarding disciplinary action for prescription drug abuse
70
Drug Testing and Policies – Best Practices
▪ Training of supervisors
▪ Look for abuse among the
workforce▪ absences
▪ decreased productivity
▪ accidents
▪ Encouraging employee dialogue
with physicians
71
QUESTIONS?
