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

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

3. 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

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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. POLICY LANGUAGE BEST PRACTICES
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November 9, 2018

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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