SUBSTANCE ABUSE PROGRAMS Webinar Wednesdays SUBSTANCE ABUSE PROGRAMS Trisha Gibo, Esq. Jessica Sneed, Esq. November 15, 2017

Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

Mandatory programs under Federal law OVERVIEW Mandatory programs under Federal law Voluntary programs under State law Best practices for policy language Reasonable accommodations process Employees with a history of substance abuse Medical marijuana and opioid use Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

Mandatory programs FEDERAL LAW & REGULATIONS Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

FEDERAL LAWS & REGULATIONS: MANDATORY PROGRAMS Drug-Free Workplace Act Federal Government Contractors Contracts for procurement of goods or services with value over “simplified acquisition threshold” ($100,000) Federal Grant Recipients Department of Defense Regulations Department of Transportation Regulations Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DRUG-FREE WORKPLACE ACT Prepare a statement of prohibited conduct Prohibit manufacture, use & distribution of controlled substances Explicit consequences for violations of policy Establish drug-free awareness program to inform employees about: Dangers of drug abuse Employer’s policy Available drug counseling, rehab, assistance Penalties for violations Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DRUG-FREE WORKPLACE ACT Distribute written statement Notify employees of their conditions of employment Must abide by terms of the statement Must notify employer of criminal drug statute conviction within 5 days Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DRUG-FREE WORKPLACE ACT Notify contracting agency of employee convictions within 10 days of receiving notice Direct action against convicted employees Impose penalty, or Require rehabilitation or counseling program Maintain ongoing, good faith effort to meet requirements Demonstrate intention to comply Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DRUG-FREE WORKPLACE ACT Not Required Alcohol-free program Drug testing Company Sanctions for Non-Compliance Suspension of payments Suspension or termination of contract/grant Debarment for up to 5 years Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DEPARTMENT OF DEFENSE CONTRACTORS Applies to Employees: With access to classified information Whose work may affect national security, health or safety Determined by contracting officer Requires testing (and other elements) Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DEPARTMENT OF TRANSPORTATION REGULATIONS Federal Motor Carrier Safety Administration Drivers of commercial vehicles (CDL required) Gross vehicle weight (over 26,000 lbs.) Size of vehicle (16 or more passengers, incl. driver) Transports hazardous materials Federal Aviation Administration Federal Railroad Administration Federal Transit Administration Pipeline and Hazardous Materials Safety Administration United States Coast Guard Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DEPARTMENT OF TRANSPORTATION REGULATIONS Required DOT Testing Designates drugs (5) plus alcohol Pre-employment, post-accident, reasonable suspicion, random (within DOT employees) Specific chain of custody procedures Specific procedural requirements Collection sites Security Privacy Notifications to employees Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

DEPARTMENT OF TRANSPORTATION REGULATIONS Required DOT Testing Split sample collection Laboratory standards, including federally licensed Test review by Medical Review Officer Confidentiality requirements Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

Voluntary programs STATE LAW Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

STATE LAW: VOLUNTARY PROGRAMS Considerations: Accident rates Workers’ compensation premiums Absenteeism or tardiness Heavy usage of health insurance benefits Unusual employee behavior Demographics High inventory or cash losses Chronically low productivity Costs of implementation Costs of testing Complexity of detailed scheme Obligation to enforce (training) Increased responsibilities of managers/supervisors Impact on morale Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

STATE LAW: VOLUNTARY PROGRAMS Testing Options Pre-employment (post-offer) Post-accident Reasonable suspicion Periodic Random Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

HAWAII STATE LAW REQUIREMENTS State-licensed laboratory Detailed regulatory scheme Criteria for lab personnel Medical review officer Chain of custody Testing methods Cutoff levels Fees Confidentiality Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

HAWAII STATE LAW REQUIREMENTS Must provide advance written statement to individual to be tested Specific substances to be tested for Statement that over-the-counter medications or prescribed drugs may result in positive test result Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

HAWAII STATE LAW REQUIREMENTS Confidentiality Provisions Need informed written consent of person tested to release results Cannot release in response to third party subpoena Exceptions: Positive result can be released to individual challenging action Individual tested, person requiring testing, decision maker in lawsuit, etc… Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

HAWAII STATE LAW REQUIREMENTS Sanctions for Non-Compliance Invalidates results Fines ($1,000 to $10,000) plus costs/attorneys’ fees to challenger Legal claims (wrongful termination, invasion of privacy rights) Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

POLICY LANGUAGE BEST PRACTICES Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

WHAT TO INCLUDE IN POLICY Policy statement Testing procedures (if applicable) Who will be tested Circumstances of testing Chain of custody, etc. Discipline procedures for refusal to test Discipline procedures for positive tests Remove employee who tests positive Termination or lesser sanction Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

WHAT TO INCLUDE IN POLICY Employee assistance Education and training components Searches Confidentiality and security Consent and release forms Confidential handling of records Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

SPECIAL ISSUES FOR UNIONIZED EMPLOYEES Employer has duty to bargaining over terms of drug testing policy Upon implementation Prior to revision Even if legally mandated No need to bargain if you get express waiver from union Cannot contradict CBA Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

Reasonable Accommodations For Employees with a History of Substance Abuse Reasonable Accommodations Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

AMERICANS WITH DISABILITIES ACT & STATE PROTECTIONS Protected individuals include qualified persons…. With a current or perceived impairment With a record of impairment Who has completed a supervised drug rehabilitation program AND is no longer using illegal drugs Participating in a supervised rehabilitation program AND is no longer using illegal drugs Regarded as using illegal drugs, AND is not currently engaging in such use Unprotected individuals include…. Those who are unqualified Those who are currently engaging in the illegal use of drugs Individuals not in a supervised rehabilitation program Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

REASONABLE ACCOMMODATIONS FOR SUBSTANCE ABUSE Engage in the Interactive Process QID asks for accommodation Employer, QID & doctor identify precise job-related limitations Never assume disability status Employer, QID & doctor identify possible accommodations QID indicates preference, but employer makes ultimate decision Employer must grant request unless it creates undue hardship Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

REASONABLE ACCOMMODATIONS FOR SUBSTANCE ABUSE Example Accommodations Modify or adjust: Work schedules or leave policies Job duties and responsibilities The work environment Equipment or devices For more information on the interactive process and reasonable accommodations in general, see our August 2017 Webinar on the ADA Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

MEDICAL MARIJUANA AND OPIOIDS If an employee’s drug test comes out positive for marijuana or opioids… Follow your substance abuse policy If an employee uses medical marijuana or opioids… Engage in the interactive process Focus on the job and job performance E.g. The employee may be unable to safely operate heavy or dangerous machinery Key: Documentation Remember what employers may still do E.g. Employers may prohibit the use of marijuana at work Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

REASONABLE ACCOMMODATIONS FOR SUBSTANCE ABUSE Employers May… Have substance abuse programs Prohibit the illegal use of drugs and alcohol at the workplace Require that employees are not under the influence of alcohol or engage in the illegal use of drugs at the workplace Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018

REASONABLE ACCOMMODATIONS FOR SUBSTANCE ABUSE Employers May… Require that employees shall not pose a direct threat to the health or safety of others in the workplace Hold all employees to the same qualification standards/job performance and behavior standards Even if the unsatisfactory performance/behavior is related to the drug use or alcoholism Copyright 2017 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 9, 2018