Purple Haze - Washington Health Care Association · 2018. 9. 25. · Purple Haze New Approaches to...

Purple HazeNew Approaches to Drug Testing, and How to React to Employee Use of Cannabis without Being Sued

Presented by Krista N. Hardwick

1September 27, 2018

September 24, 2018 2

The Backdrop

Positive drug test rate fell from 13.6% in 1988 to 3.5% in 2012*

That is 20+ years of decline

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*Source: Quest Diagnostics Annual Drug Testing Index

Workplace Drug Issues Were Largely Off Employers’ Radars Until Recently

September 27, 2018


2013: The Tide Begins to Turn

Drug overdoses killed about 72,000 Americans last year, a record number that reflects a rise of around 10 percent, according to new preliminary estimates from the Centers for Disease Control. The death toll is higher than the peak yearly death totals from HIV, car crashes or gun deaths.

5

2013: The Tide Begins to Turn cont.

(a) Increase in positive results year over year starting in 2013

(b) Staggeringly fast rise in opiates positivity: fentanyl is #1

(c) Double digit increases in cocaine rates in some states

(d) Methamphetamine positivity skyrockets in Midwest and Southern States

(e) Marijuana positivity rising sharply where recreational use legalized

September 27, 2018

Cocaine

• Double-digit year-over-year increases in at least four of the five past years were seen in:

• Nebraska (91% increase between 2016 and 2017),

• Idaho (88% increase),

• Washington (31%),

• Nevada (25%),

• Maryland (22% increase), and

• Wisconsin (13%).

6September 27, 2018

Between 2013 and 2017, methamphetamine positivity skyrocketed:

• 167% in the East North Central division of the Midwest (Illinois, Indiana, Michigan, Ohio, Wisconsin);

• 160% in the East South Central division of the South (Alabama, Kentucky, Mississippi, Tennessee);

• 150% in the Middle Atlantic division of the Northeast (New Jersey, New York, Pennsylvania); and

• 140% in the South Atlantic division of the South (Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, West Virginia).

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Methamphetamine

September 27, 2018

• Legal for recreational use in nine states, and District of Columbia

• Recreational use decriminalized in another 13 states, plus U.S. Virgin Islands

• Legal for medical use in 31 states

• Legal for medical use with limited THC content in 15 other states

• Remains illegal in only four states and federal law

• 64% of Americans surveyed by Gallop say marijuana should be legal

8

Marijuana

September 27, 2018

Marijuana Remains an Illegal Schedule 1 Drug Under Federal Law but…

President Trump stated in April that he would “support congressional efforts to protect states that have legalized marijuana.”

STATES Act

• President Trump stated this summer that he "probably will end up supporting" the bill.

• "[T]he most significant piece of marijuana-related legislation ever introduced in Congress." - Don Murphy, conservative outreach director for the advocacy group Marijuana Policy Project

• "[F]or the first time ever, a real and legitimate bipartisan 'respect states' rights' effort" on "meaningful marijuana law reform at the Congressional level." – Above the Law

9September 27, 2018

10

A. Lost Time

• Typical worker misses about two workweeks annually (10.5 days)

• Workers with substance use disorders miss 50% more work (14.8 days)

• But . . . recovered addicts miss fewer days than anyone else (9.5 days)

Source: National Safety Council

Costs of Drug Usein the Workplace cont.

September 27, 2018

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B. Job Turnover and Retraining

• Average cost of recruiting and retraining replacement worker: 21% of annual salary

• General workforce population: 25% have had more than one employer in past year

• Workers with substance use disorders: 36%

• Workers with prescription pain use disorders: 42%

• Recovered addicts have lowest turnover rate: 21%


September 27, 2018

12

C. Healthcare

• Cost to treat substance use disorders in America: $35 billion/year

• Cost to treat associated injuries, infections, and illnesses: $85 billion/year

• Results in increased healthcare premiums

• Average employer covers 82% of individual premiums and 71% of family premiums



September 27, 2018

To Test or Not to Test

56% of U.S. employers currently test applicants and/or employees for illegal drugs

We are seeing a reduction in how many test for marijuana

• Of those who test, 66% tested for marijuana in 2017

• Down from 77% in 2016

Balance tight labor market with health and safety concerns

13September 27, 2018

To Test or Not to Test cont.

State drug testing laws vary

• Many haven’t caught up to marijuana legalization but some have:

• D.C. bans employers from testing applicants for marijuana until after conditional offer of employment has been made

• Maine initially passed a law banning employers from testing for marijuana in pre-employment context (has since been rescinded)

• Washington – no uniform state law regulating drug testing by private employers

• Oregon – no drug testing laws; employers must comply with alcohol testing laws

• Alaska – Optional drug testing law; must have a written policy to test that is job related and consistent with business necessity

Note federal drug testing laws (e.g., Dept. of Transportation)


Types of Tests

Pre-Employment – No alcohol tests before conditional offer is made

Reasonable Suspicion: Employer has specific, contemporaneous, and articulable suspicion of drug or alcohol use based on observations of employee:

• Odor of alcohol on the body or breath

• Slurred speech

• Unsteady standing or walking

• Inability or difficulty completing routine tasks

• Disorientation or confusion

• Erratic or unusual behavior


Types of Tests cont.Random

• Avoid unless high risk, safety sensitive position

• Random means random

• Test at least 50% of workforce each year

Post-Accident Testing

• New OSHA Rules

• OSHA believes that blanket post-accident drug testing policies can suppress injury reporting among employees

• Blanket post-accident drug testing policies violate OSHA rules

• Two requirements for valid post-accident test:

• Employer must have a reasonable belief that substance use could have caused or contributed to a workplace incident; and

• Only where “the drug test can accurately identify impairment caused by drug use.”

• Exception where post-accident testing required by law


The “Poppy Seed Bagel” Defense


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Prohibit use, possession, sale, distribution or manufacture of drugs and drug paraphernalia at work

Define “illegal drug”

• Marijuana

• Prescription medications

Drug Free Workplace Policy

September 27, 2018


Forbid employees from reporting to work while under the influence

Reserve the right to search

Drug Testing; what is acceptable level and refusals to test

• Recommendation: “Any trace amount”; issues in determining level of impairment from THC

• This is changing: The “Pot Breathalyzer”



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Ensure compliance with applicable state and federal laws

• Drug Free Workplace Act

• Department of Transportation zero-tolerance policy and drug-testing rules

September 27, 2018

The “Ambien Made Me Do It” Defense



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EEOC

• Discipline for misconduct related to a disability is allowed if the rule is job-related and consistent with business necessity and other employees are held to the same standard

Federal courts have differing opinions

• Employers in the 9th Circuit should tread carefully

September 27, 2018

Off Duty, Lawful Conduct

State laws differ as to whether an employer may terminate employment for lawful, off-duty conduct

Includes smoking and drinking alcohol outside working hours

More than half of the states have a statute that protects employees from adverse employment actions because of their lawful off-duty activities

• California

• Nevada

• Oregon


Hiring and Firing in the Wake of Marijuana Legalization

State laws vary: 12 states protect medical marijuana patients’ employment rights

• Pennsylvania and Rhode Island: Employers cannot discriminate against employees “solely” on the basis of their status as medical marijuana users

• Minnesota and Delaware: Employers may not terminate employees who test positive for marijuana unless the individual was impaired on the job



Emerald Steel Fabricators v. BOLI: Oregon Supreme Court held that employer may terminate employee for using medical marijuana because it is illegal under federal law and Oregon disability statute did not apply

California and Washington courts have issued similar decisions



Washington’s statute specifically states employers do not have to accommodate

If state statutes are not explicit: best practice is to engage in interactive process

But stay tuned! Pendulum is swinging other direction


Federal Issues – the “ADA”

Individual who is currently using “illegal drugs” is not “disabled”; marijuana is “illegal drug” under federal law

Recovering and recovered drug addicts – may be disabled –consider accommodations (e.g. nurse is re-assigned to patients who do not need to be administered narcotics)


Federal Issues – the “ADA”

ADA does not require accommodation of medical marijuana (But remember: state law might!)

Active alcoholics – consider leave of absence to complete a rehabilitation program

Recovered or recovering alcoholics – consider modified schedule for self-help meetings


Key Takeaways

Maintain and enforce a drug-free workplace policy

• Include the right to search the workplace for drugs

• Include drug testing, if applicable


Key Takeaways

Drug testing program should include testing for major opioids, including fentanyl

Train supervisors and managers

• On the policy

• On how to spot the signs of drug use


Questions?


Thank you!

Krista N. Hardwick

[email protected]

206.223.7270


Purple Haze - Washington Health Care Association · 2018. 9. 25. · Purple Haze New Approaches to...

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