How to Develop a Legally Sound
Drug & Alcohol Testing Policy to
Minimize Injuries in Your
Workplace
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams P.C.
www.safety-law.com
Overview
• Progress has been made overall in the battle
against substance abuse in the workplace.
• Smaller employers (especially small employers
and construction companies) lag behind.
• Reason? Perceived lack of resources and
administrative staff, and high employee turnover.
• Some employers do not know where to start in putting
a program together.
• Others lack information about the true consequences
of taking no position on this critical issue.
Overview
• Failure to address issue proactively makes such
companies the employer of “last resort” for addicts
and alcoholics.
• Between 10 and 20 percent of the nation’s workers
who die on the job test positive for alcohol or other
drugs
• Moreover, 47 percent of industrial injuries are linked
to alcohol consumption and alcoholism.
• 2008 Canadian study indicated that transient or shift
workers in mining, oil/gas may be more prone to
substance abuse because of loneliness and lack of
societal network.
Challenges to Prevention
• Workers cover up the impaired actions of their colleagues because
of a reluctance to “narc” on buddies.
• This can have grave consequences because if worker is too drunk
or stoned to work, he is probably too impaired to drive home!
• If management is not notified and the individual is permitted to
leave the site, liability may result in the event of an accident.
• Companies must make it clear that confidentiality of
“whistleblowers” will be protected.
• Companies must protect the privacy of workers who come forward
voluntarily and seek help or who, post-testing, opt to enroll in a
treatment program or use a company Employee Assistance Program
(EAP).
Data on Illicit Drug Use
Data on Illicit Drug Use
Substance Abuse Impact
• In addition to accident costs, substance abuse at work
increases:
•
•
•
•
absenteeism
judgment errors
medical insurance claims, and
decreases employee morale and productivity.
• 25 % of laborers and construction supervisors between
the ages of 18 and 49 admit to illegal drug use in the past
year!
• 44 % of current illicit drug users report that they work for
companies with 1-24 employees, while only 13 % work
for establishments with more than 500 employees.
Drug/Alcohol Testing
• While drug testing may not be cheap, it is essential that this
be a component of the program.
• Many companies test post-accident, as this provides a
legitimate basis for disciplinary action, and may offer a
possible defense to worker’s compensation claims).
• However, OSHA and MSHA are conducting interviews which
indicate post-accident drug tests are viewed by workers as
“discipline,” and can impact reporting of injuries.
• Certain individuals (e.g., CDL drivers) may be subject to
random testing.
• Some companies test individuals who behave in a manner
that suggests the worker is impaired and poses a danger to
himself and others.
Caution: Collective Bargaining Agreements may have
specific provisions on drug/alcohol testing.
State Laws on Drug Testing
•
•
Most states set mandatory procedural requirements for employers who
subject employees or applicants to drug testing, which require
employees to:
• provide employees with a written statement of their drug
testing policy;
• require confirmatory tests in the case of an initial positive
test result;
• allow employees or applicants who have tested positive to
have the sample retested at their own expense;
• offer employees who test positive the opportunity to enroll
in a drug rehabilitation program; and
• allow termination of employees testing positive only when
they refuse to participate in such a program, fail to complete
such a program, or violate the terms of the rehabilitation
program.
States like Connecticut and West Virginia require employers to have
reasonable grounds to suspect that employees are using drugs before
subjecting employee (other than employees in safety-sensitive positions
or subject to federal drug testing requirements) to drug test.
Drug Testing Liability
• EEOC entered consent decree with manufacturer, requiring it
to pay $750,000 to employees based on drug testing that
violated the ADA. EEOC v. Dura Automotive Systems Inc. (MDTN 2012)
• Employer had tested for “legally prescribed drugs” and
required workers to disclose medical conditions for which
medications were used as treatment.
• Employer made it a condition of employment for workers to
cease taking medications, without evidence that the meds
affected job performance, and suspended employees until
they were “off the meds”
• In addition to monetary settlement, employer also was enjoined
from making medical inquiries and conducting drug tests that
were not job-related and justified by business necessity
Developing Substance Abuse Prevention
Programs
There are five basic components of substance abuse prevention
programs:
1.
2.
3.
4.
5.
A written policy
Supervisor training
Employee education
Employee assistance
Drug and alcohol testing
Supervisor Training
• Supervisors need to be informed on how to identify an
addiction-related problem in advance of a catastrophic
event, as well as how to get help for addicted workers.
• Workers who are suspected of being “under the
influence” should be taken to a private area, and a
second supervisor or witness should be present to
document any action or statements.
• Senior management must be notified of these events.
• It may be necessary to suspend a worker until an
investigation can take place and/or until the worker
completes treatment or is evaluated by the company
EAP.
Dealing with Impaired Workers
• Impaired workers should be escorted home.
• The cost of a single drug-or-alcohol related
accident to the company far outweighs the price
of implementing a preventative program!
• If a worker is caught dealing drugs on the
employer’s worksite, local law enforcement
authorities should be contacted for assistance …
don’t try to play deputy!
Federal Laws Addressing Substance
Abuse
• Some federal laws apply to the employer’s rights and
obligations with respect to maintaining a workplace that
is free of substance abuse, while also handling human
resource issues legally.
• Drug-Free Workplace Act of 1988
• Americans with Disabilities Act
• Family & Medical Leave Act
 In addition, companies that perform work under government
contracts may be subject to the requirements of the
Rehabilitation Act of 1973 (Section 503 pertains to employment
of persons with disabilities, including those addicted to drugs or
alcohol).
Americans With Disabilities Act
• Applies to companies with 15+employees (analogous
state laws may cover smaller companies)
• Enforced by Equal Employment Opportunity Commission
(EEOC) or by state human rights agencies
• Drug addiction and alcoholism are covered disabilities
“affecting major life activities” BUT little case law to
establish true “bright line” tests on what employers can
and cannot do ... And MMJ may complicate what is
considered “active addiction/use.”
• The case precedent may vary depending upon which Court of
Appeals Circuit controls in your area.
Americans With Disabilities Act
• Employers may prohibit the illegal use of drugs and the use of
alcohol in the workplace.
• The ADA is not violated by tests for illegal use of drugs (but
remember to meet state requirements, which may differ from
federal standards).
• This is where MMJ can present tricky issues … more to
come on that!
• The “direct threat to safety” defense can only be raised if
there is a tangible (not speculative) threat – again MMJ
positive tests (absent impairment) become an issue …
• Employers may discharge or deny employment to persons
who currently engage in the illegal use of drugs.
• Employers may not discriminate against drug addicts who are
not currently using illegal drugs and have been rehabilitated
or have a history of drug addiction.
OSHA/MSHA Enforcement
• OSHA can enforce under General Duty Clause (Sec.
5(a)(1) of OSH Act) for permitting employees to be
impaired at the worksite – “recognized hazard”
• Typically used in accident cases where tox screens are
positive.
• 30 CFR 56/57.20001: “Intoxicating beverages and
narcotics shall not be permitted or used in or around
mines. Persons under the influence of alcohol or
narcotics shall not be permitted on the job.”
• No analogous rule for coal.
• MSHA commenced a rulemaking in Bush
administration to set coal standard and mandate drug
tests (similar to CDL) at all mines but rule was taken off
regulatory agenda in Obama administration.
DOT Rules for Commercial Drivers
• Omnibus Transportation Employee Testing Act of
1991 requires drug and alcohol testing of safetysensitive transportation employees in aviation,
trucking, railroads, mass transit, pipelines and
other transportation industries.
• The rules apply to operators of commercial
motor vehicles, both intrastate and interstate.
DOT Rules - CDL
• DOT publishes rules on who must conduct drug and alcohol tests,
and these are codified at 49 CFR Parts 40 and 382. See
http://www.dot.gov/ost/dapc/odapc_faq.html for answers to
common questions.
• Required tests include pre-employment/pre-duty, reasonable
suspicion, random, post-accident, and return to duty.
• “Commercial Motor Vehicle” means a motor vehicle used in
commerce to transport passengers or property if the vehicle
• Has a gross combination weight rating of 26,001 or more pounds, or
• Is of any size and is used in the transportation of materials found to be
hazardous for the purposes of the Hazardous Materials Transportation
and which require the motor vehicle to be placarded.
DOT Penalties
• Penalties are assessed administratively by the FMCSA for
violations of parts 382 and 40 and administrative orders
may be issued to bring about satisfactory compliance.
• Criminal penalties may be sought against a motor carrier
(employer), its officers or agents, a driver, or other
persons when it can be established that violations were
deliberate or resulted from a willful disregard for the
regulations.
• Criminal penalties may be sought against an employee
only when a causative link can be established between
knowing and willful violation and an accident or the risk
thereof.
Rec/Med Marijuana Laws
• 23 states & Washington, DC currently have legalized
some form or another of medical marijuana use and 4
(AK, CO, OR, and WA) have legalized recreational use (DC
too … still at issue).
• Others (e.g., MD) have decriminalized use and
possession, making it akin to a parking ticket.
• U.S. Supreme Court issued a key decision in June 2005
confirming that marijuana remained an illegal drug under
federal law no matter what state laws said (Gonzalez v.
Raich) – will this become “old law” in light of
legalization?
Recreational Marijuana Laws
• In Obama administration, official position is not to
prosecute in states where use is legal (at least for
possession and with respect to legal dispensaries).
• New recreational laws in Alaska and DC state explicitly
that nothing requires employer to permit or
accommodate use, consumption, possession in
workplace, or to have policies restricting use by
employees.
• New Oregon rec. law provides it does not amend any
state or federal law regarding employment matters, and
permits federal contractors & grantees to prohibit use as
needed to satisfy federal requirements.
• Colorado Amendment 64 provides that nothing is
intended to require employer to permit or accommodate
use in workplace.
Recreational Marijuana
• Too soon to have reported cases on employment terminations
based on positive tests triggered by recreational marijuana
• States grappling with how to determine “impairment” for DUI
purposes – could have spill over into workplace once
nanogram level is established
• The recreational marijuana laws do not specifically change
employer rights in any way – zero tolerance policies can be
enforced (for now)
• But rates of (legal) marijuana use expected to increase (or
perhaps people will be more honest in surveys!)
Employers should amend policies to clarify if/that there is zero
tolerance for RMJ and MMJ use (esp. if current policy just
outlaws “illegal drugs”) … and clarify that even if legal, not
permitted to be under the influence while OTJ.
Legal Decisions – MMJ Early Cases
• In 2008, the Oregon Court of Appeals dealt a blow to
employers fighting medical marijuana in the workplace,
letting stand an administrative decision which had
granted a victory to a medical marijuana user (Emerald
Steel Fabricators, Inc. v. Bureau of Labor and Industries).
• California Supreme Court rejected a lawsuit brought by
an employee who was terminated shortly after his
employer learned that he had tested positive for
marijuana. According to the court, employers have the
right to conduct preemployment drug tests and to fire, or
refuse to hire, individuals who test positive for illegal
drugs – even if they are used for medicinal purposes.
Ross v. RagingWire Telecommunications, Inc., California
Supreme Ct. 2008
• In Johnson v. Columbia Falls Aluminum Company, the
Montana Supreme Court ruled that an employer is not
required to accommodate an employee's use of medical
marijuana under the federal ADA or the Montana Human
Rights Act. (2008).
Legal Decisions - MMJ
• Coats v. DISH Network, Colo. Ct. of Appeals (2013).
• Reinforced right to terminate “positive” employee who held MMJ
card, even in absence of evidence of impairment on the job.
• On appeal …
• Roe v. TeleTech Customer Care (Colorado 2011).
• The Washington State Supreme Court held that an employer was
not regulated by the Washington State Medical Use of Marijuana
Act, and did not protect and employee (or prospective) employee
from being discharged after a positive drug test.
• Casias v. Wal-Mart Stores, Inc., 6th Circuit, 2012)
– The court found in favor of Wal-Mart. The court held that Casias
had no claim of wrongful discharge as the Michigan’s Medical
Marijuana law does not regulate private industry. The law only
provides limited protection from state prosecution.
Legal Decisions - MMJ
• The case law establishes a clear line that at this point, the
private sector and employers are not regulated or controlled
by state medical marijuana laws (but check statutory
language).
– There are current attempts in states, such as Maine, to limit the
ability of private industry to terminate employees.
– Decision in Michigan held that being fired for MMJ use was not
“misconduct” and did not disqualify former employees from
receiving unemployment insurance benefits.
– Employer did NOT allege that the workers were under influence
while at work.
– The legal precedent outlines that in the federal realm, marijuana
is still illegal and employers cannot be forced to permit it, but
must continue to follow legal testing procedures and
requirements.
States with Protections
• Maine and Rhode Island have also attempted to protect
workers from termination due to medical marijuana
consumption.
– These laws are similar to one another and prohibit employers
from discriminating against employees who legally use medical
marijuana.
– However these states do not offer explicit protections for users
who test positive during drug testing.
– These have not been tested in court at this time, but Maine has a
possible claim in progress.
Rhode Island MMJ Case
• Filed 11/14 by ACLU against Darlington Fabrics, claiming
discrimination against candidate because she disclosed use of MMJ
for migraine headaches.
• Candidate had disclosed use and promised not to come to work
under influence but was told she would not be hired because of
current use of MMJ.
• She is NOT alleging discrimination under federal ADA, but under RI
MMJ Act, which prohibits employment discrimination based on
individual’s status as MMJ cardholder.
• States with similar protections: AZ, CT, DE, IL, ME, MN, NV and NY
– Arizona and Delaware laws are similar to RI and seek to prevent
discrimination in “hiring, termination, or any term or condition of
employment, or otherwise penaliz[ing] a person…status as a cardholder”
or due to positive drug test for marijuana.
Recent Maine Case Law
• Thomas v. Adecco USA, Inc., 2013 WL 6119073, United States
District Court District of Maine, Nov. 21, 2013.
– An employee was not rehired by an employer for a manufacturing
(smoke detectors) job. Before returning, she disclosed that she
was using medical marijuana, was drug tested and tested
positive. Employee was not rehired due to positive drug test.
– This was a preliminary decision on jurisdiction. The defendant
company did not rehire an employee after becoming aware of the
employees use of medical marijuana.
– The employer moved to have the case heard in Federal Court,
while the employee attempted to remand the matter to Maine
state court.
– The District Court held that federal jurisdiction was proper. The
decision on the merits is still pending.
Arizona and Safety-Sensitive
Positions
• Arizona currently addresses safety-sensitive positions with its
medical marijuana law.
– Employees in safety-sensitive positions are not protected from
termination or discharge due to use of marijuana.
– Employees in safety-sensitive positions can request to be
assigned a “non-safety-sensitive” position, and employers may
transfer the employee, but the employee does not have the right
to demand the pay while performing the safety-sensitive
position.
Connecticut MMJ Law
• The Connecticut bill was signed into law on May 31, 2012, and
became effective on October 1, 2012.
• The law outlines requirements for registration, including an age
requirement of 18.
• It outlines qualified conditions, which are similar to other states
in the region, including but not limited to, cancer, Parkinson’s and
Crohn’s diseases, and post traumatic stress disorder.
• CT law specifically bars employers from refusing to
hire, discharging, penalizing, or threatening individuals
based on MMJ use.
What is Impairment???
• Many employers use 50 ng for MJ
• Cottage industry growing on how to thwart drug tests
• Typical types: urine, blood, hair, saliva
• Colorado, Washington and other states where now legal
will need to address through DUI laws …
• Growing field of forensics to determine if workplace
accident victims were impaired – consequences for
worker’s compensation, OSHA/MSHA liability, affirmative
defenses in wrongful death and personal injury cases of
contractors injured OTJ
FACTS About Substance Abuse
• FACT: The majority (74 percent) of current (past month) illicit drug
users 18 or older are working either full-time or part-time.
• This means that 12.4 million drug addicts are actively employed in the
workplace, with the highest percentage working in the construction
industry.
• FACT: The job classification with the highest rate of active drug use
(17.2 percent) and illicit drug use within the past year (25.9 percent)
is “Construction Supervisor.” An additional 13 percent of supervisors
admit to current heavy alcohol use.
• That means the unsafe and negligent actions of the drug-using supervisor will be
directly imputed to the employer for purposes of tort liability and MSHA/OSHA
enforcement actions, because those individuals are considered “agents” of
management.
• FACT: The trend is toward legalization of MMJ (or possibly all
marijuana) and better tests may be needed to gauge impairment
versus “positive tests” … but evolving case law suggests that
employers currently can terminate (most) employees legally taking
MMJ if they are in safety sensitive positions.
Bottom Line
• Employer seeking protection under a state MMJ or
recreational statute should adopt and publish substance
abuse prevention policies that indicate:
• types of testing required
• circumstances under which applicants/employees will
be tested
• consequences of failing a test
• testing methodology to be used (hair, saliva, urine,
etc.)
• information to be provided to tested employee upon
request
Conclusion
• Accidents and injuries create severe hardships, not just for the victims, but
also for the employer.
• A serious drug/alcohol related incident can shut down a small operation
due to the financial impact from litigation.
• There is clear evidence that utilization of a substance abuse prevention
program will ultimately save lives of the substances abusers and those
they work with.
 If any employee self-identifies as having a medical marijuana card, you
should start an interactive process with that employee to determine
whether a true disability is present and whether other accommodations
besides drug use will allow for the performance of essential functions.
• Don’t let your company be the employer of choice for active illegal drug
addicts and alcoholics!
Burning Questions?
Adele L. Abrams, Esq., CMSP
301-595-3520
safetylawyer@aol.com