booze, pills and pot: substance abuse in the workplace · 2019. 5. 3. · key topics for today 1....

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Key Topics for Today1. Key considerations for workplace substance

abuse policies (and impact of the ADA) 2. Update on marijuana laws and potential impact on

workplace policies3. Dealing with employee disclosures4. To test or not to test?

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Policy Considerations

1. General Prohibitionsa. Sale or distribution of drugs and/or alcoholb. Use, possession, concealment or purchase of

drugs or alcoholc. Prohibitions pertain while on premises or while on

duty (including unpaid meals and breaks)d. On-duty impairment due to use of drugs and/or

alcohol – as well as due to OTC or prescription drugs that impair job performance

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2. Types of Testinga. Pre-employment (only after conditional offer of

employment extended)b. Reasonable suspicion – based on evidence

including, but not limited to: i. Direct observationii. Noticeable declines in productivity/performanceiii. Violent, erratic or risky behavior

c. Post accident and/or near-miss d. Random (consult state law)

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3. Discipline for violations of policy, including:– Lack of fitness for duty– Failure to cooperate with testing

4. Mention disclosure / rehabilitation 5. Employee Assistance Programs (EAPs)

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Americans With Disabilities Act

1. ADA – Can’t take adverse action against someone because:a. The person has a disability (current)b. The person had a disability (prior)c. The person is regarded as having a disability

(perceived)

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2. ADA provides that drug or alcohol dependency may be protected disability. However, no protection applies if:

a. No dependency – mere userb. Current use of illegal drug, even if there is

dependencyc. Current use of prescription drug not

prescribed to user

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3. Application – Can’t take adverse action against someone because:a. Person previously had an alcohol or drug problem

(legal or illegal)b. Person currently has alcohol or prescription drug

problemc. Person is perceived as having or having had

alcohol or drug problem (legal or illegal), even if the person does not or did not

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4. Application – Can take adverse action against someone because:a. Person currently is using illegal drugsb. Person currently is using prescription drugs not

prescribed to userc. Person is unfit for duty because of drugs or alcohol

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State Laws on Medical Marijuana

North DakotaOhioOklahomaOregonPennsylvaniaRhode IslandUtah VermontWashingtonWashington, D.C. West Virginia

AlaskaArizonaArkansasCaliforniaColoradoConnecticutDelawareFloridaHawaiiIllinoisLouisianaMaine9

MarylandMassachusettsMichiganMinnesotaMissouriMontanaNevadaNew HampshireNew JerseyNew MexicoNew York

Currently, 33 states (and D.C.) have authorized use of marijuana for medicinal purposes:

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Recreational Use States

Out of the 33 states, 10 have decriminalized marijuana for limited recreational use.

– Colorado (2012)– Washington (2012)– Oregon (2014)– Alaska (2014)– Nevada (2016)– California (2016)– Maine (2016)– Massachusetts (2016)– Vermont (2018)– Michigan (2018)

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State Law Does Not Change Federal Law

Marijuana is a Schedule I drug under the Controlled Substances Act. • No distinction between recreational and medical use.• Schedule I drugs are defined as drugs with no currently

accepted medical use, with a high potential for abuse and with potentially severe psychological or physical dependence.

• Others: heroin, LSD, ecstasy, methamphetamine, peyote.

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• California– California law did nothing to change employer’s right to

test for drug use and maintain a drug free workplace. It only decriminalized use under state law.

– Marijuana was not afforded same kind of status as other prescription drugs – It is still illegal under federal narcotics laws.

Ross v. Raquire Telecommunications, Inc. (Cal. 2008)

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• Oregon– While medical marijuana is legal under state law, it

is still illegal under federal law.– Illegal drug users are not considered disabled

under Oregon’s Disability Discrimination Law.

Emerald Steel Fabricators, Inc. v. Bureau of Labor Industries (Ore. 2010)

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• Colorado– Off-duty conduct law does not protect licensed

medicinal users (or recreational users) from adverse actions in the workplace. Coats v. Dish Network(Colo. 2015).

– Possession of medical marijuana license does not shield an employee from discharge for violating employer’s drug policy by testing positive on a drug test. Curry v. MillerCoors (D. Colo. 2013).

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Interplay of Federal and State Laws

• Potentially applicable laws– Americans with Disabilities Act– Family and Medical Leave– State Disability and Leave laws

• Possible obligations– Leave for rehabilitation– Adjusted schedule to accommodate treatment

schedule

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Marijuana & Substance Abuse Policy

Review current policies if you do business in any state with medical marijuana laws.

• Decide whether you will allow for off-site medical use of marijuana.– If so, exclude medical marijuana from your policy.– If not, state so in policy.

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Employee Disclosures

Develop criteria for requiring employees to disclose drug use (including prescriptions and medical marijuana) to evaluate potential safety issues, particularly in safety sensitive industries. Notification of prescription / medical marijuana use

that might impair or cause safety problems Ensure applicant / employee confidentiality

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Rehabilitation / EAPs

Consider Employee Assistance Program (EAP) program for employees who wish to seek confidential assistance for treatment related to substance abuse issues Consultations confidential Seeking assistance from EAP does not absolve

employee from discipline for D&A policy violations May consider referring employee to EAP, but be

careful (e.g., ADA considerations). Consult with Human Resources before any referral is made.

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Drug & Alcohol Testing

• Train managers to detect signs of potential intoxication and/or not being fit-for-duty.

• To Test or Not to Test?– ADA implications– Employee relations– Union relations– Lawsuits!!!

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To Test or Not to Test?Scenario # 1Jerry has been employed for seven months. In this short period of time, he has been absent on fifteen days, nine of them on Mondays and six of them on Fridays. The week after you gave Jerry a final warning that his employment will terminate unless there is immediate and sustained improvement with regard to his attendance, he arrives to work late three days in a row. On all three days, his eyes are red, his gait is unsteady and he appears overly relaxed.

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To Test or Not to Test?Scenario # 2Elaine cuts her hand while using a circular saw. It is her second accident with the circular saw in 3 weeks.

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To Test or Not to Test?Scenario #3Over the last few months, George’s performance has steadily declined. There is no evidence of workplace impairment but he talks a lot about severe back pain and you are aware he hangs out with several employees who multiple managers suspect (non-medical) marijuana use. George also has asked Cosmo, a co-worker and licensed medical marijuana user, about his experience using medical marijuana.

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Trapped in the Weeds?Scenario #4Newman is an excellent and long-term (10+ year) employee. He recently was diagnosed with cancer and must undergo chemotherapy. As a result of the treatments, Newman develops severe pain and nausea. His physician prescribes medical marijuana. The company has maintained a zero tolerance policy for drug use (including medical marijuana) and discovers in a random drug screening that Newman is using marijuana. Newman asserts that the company must reasonably accommodate his use. Company management is now considering rethinking its approach to its drug policy and/or treating Newman’s current situation as an exception to its general policy.

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booze, pills and pot: substance abuse in the workplace · 2019. 5. 3. · key topics for today 1....

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