WEED AND
WEAPONS –
Workplace Liability
Issues
Presented by
Mark A. Lies II
Seyfarth Shaw LLP
131 South Dearborn Street, Suite 2400
Chicago, Illinois 60603
(312) 460-5877
mlies@seyfarth.com
Mark A. Lies II
Chicago Office
(312) 460-5877
mlies@seyfarth.com
Areas of Practice
Litigation
Safety and Health Litigation,
Workplace Violence
Employment Law
Environmental, Safety & Toxic Torts
OSHA
Experience
• Mr. Lies is a partner in the Chicago office. His practice areas include occupational safety and health, workplace
violence, related employment litigation and personal injury litigation. In his practice relating to workplace violence
prevention, he has worked closely with representatives of federal and state law enforcement, including the FBI,
Department of Homeland Security and Department of Justice, as well as Associations, including the Association of
Threat Assessment Professionals (ATAP).
• He is an adjunct member of several national safety organizations including the American National Standards
Institute (ANSI) and the National Fire Protection Association (NFPA).
• He has written extensively on workplace violence and is the Editor of Preventing and Managing Workplace Violence,
ABA Publication, 2008
Education
• J.D., DePaul University School of Law (1974)
B.A., University of Notre Dame (1968)
• US Navy Officer (1968-1974), Vietnam Veteran
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Drug and Alcohol Testing
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Why Should a Company Test Its
Applicants And Employees for Drugs
and Alcohol?
• To comply with federal laws and regulations
• To take advantage of state laws that provide:
• a workers’ compensation premium reduction to an employer that
complies with its provisions
• protection from liability in connection with an employer’s
administration of its policy
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Why Should a Company Test Its
Applicants And Employees for Drugs
and Alcohol?
• To provide a safe, healthy and productive work
environment for its employees, and to protect its
customers and other members of the public from
hazards that may arise as its employees work on the
company’s premises, in the field, or on premises other
than those owned by the company
•
•
•
•
Society/community standards
Industry standards
Company culture
In response to an incident or a pattern of alcohol misuse or
illegal drug use by employees
• Contractual obligation to a customer
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If a Company Wants to Test,
What Should It Do?
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If a Company Wants to Test,
What Should It Do?
Adopt a written drug and alcohol policy with information regarding the following:
The company’s
drug and alcohol
related work rules
Sources of help for
drug abuse and
alcohol misuse
problems
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The types of tests it
conducts and who is
subject to testing:
Pre-employment
Reasonable suspicion
Random
Post-accident
Return-to-duty
Follow-up
The consequences
that flow from
testing positive or
committing other
violations of the
policy
The company’s
commitment to
maintain the
confidentiality of test
results and other
medical information
to the greatest extent
possible
If a Company Wants to Test,
What Should It Do?
A company should also:
• Notify applicants during the application process that the
company has a
policy and inform them of any testing
• If it is adopting a policy for the first time, or modifying an
existing policy, tell
all employees about the adoption or
modification of the policy in advance (at
least 30 days)
• Distribute copies of its policy to all employees and have
them
acknowledge their receipt of the policy
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If a Company Wants to Test,
What Should It Do?
•
Limit testing to detect for the presence of specified drugs
•
Use a form in which supervisors and other employees who have been trained to make
reasonable suspicion observations can easily document, within a specified period of
time (24 hours), their specific, contemporaneous, objective observations concerning an
employee’s appearance, behavior, speech or body odors that caused the employer to
require the employee to submit to a reasonable suspicion drug test
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If a Company Wants to Test,
What Should It Do?
•
Use a scientifically valid method, such as a computer-based random number generator
that matches employees with identifying numbers, to select employees for random
drug testing. The tests should be unannounced, spread throughout the year, and
employees should have an equal chance of being tested each time random selections
are made
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If a Company Wants to Test,
What Should It Do?
•
Use forms that require applicants and employees to provide their written consent to
testing contemporaneous with their selection for testing
•
Ensure that specimens are collected in private, without direct observation
•
Implement chain of custody procedures designed to ensure proper identification,
labeling, recordkeeping, handling and testing of specimens
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State and Local Law
Considerations
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State and Local Law Considerations
General Principles:
• Employers should be aware of the various state and local
laws governing drug and alcohol testing of employees in
order to avoid invasion of privacy, wrongful termination,
and other constitutional, common law, and statutory
claims
• Although drug and alcohol testing is unregulated in many
states and in the District of Columbia, several states and
two cities have restricted, either by statute/ordinance or
judicial decision, the types of drug and alcohol testing that
employers may lawfully conduct and/or the collection and
testing procedures that an employer and its service
providers must follow in conducting such testing
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State and Local Law Considerations
Types of Drug and Alcohol Testing
1. Pre-employment testing
―- Generally, pre-employment drug testing of applicants is
lawful. In those states in which such testing is regulated, it is
typically limited to those applicants who have been made
conditional offers of employment.
―- With respect to pre-employment alcohol testing, there are
practical and legal (under the Americans with Disabilities Act
and some state laws) reasons against conducting such
testing
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State and Local Law Considerations
2.2.
Reasonable suspicion testing
― Employers who have reasonable suspicion, based
on specific, contemporaneous objective and
articulable facts concerning an employee’s
appearance, behavior, speech or body odors, that
an employee is using alcohol and/or drugs or is
under the influence of alcohol and/or drugs, may
require the employee to submit to drug and/or
alcohol testing with little or no risk in most
jurisdictions if they have given their employees
advance notice of such requirement
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State and Local Law Considerations
― Several jurisdictions, including Connecticut, Boulder,
Iowa, Maine, Minnesota, Montana, Oklahoma,
Rhode Island, San Francisco, and Vermont, have
statutes or ordinances that define reasonable
suspicion, “cause,” or “ probable cause,” and in some
instances place additional minor restrictions on such
testing.
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State and Local Law Considerations
3.3.
Post-accident testing
― An employer may generally subject employees to postaccident testing
― Some jurisdictions, however, such as Boulder,
Connecticut, Maine, Rhode Island, San Francisco, and
Vermont, forbid such testing unless the employer also has
reasonable suspicion to believe that the employee was
under the influence of drugs and/or alcohol at the time of
the accident
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State and Local Law Considerations
― Employers who desire to subject employees in
California to post-accident testing are advised to
limit such testing to situations in which they can
show some indicia of causation by the employee
and a threshold level of personal injury, such as
immediate off-site medical treatment, or property
damage
― A few states, such as Iowa and Montana, have
statutorily imposed a threshold level of personal
injury and/or property damage required to subject
employees to post-accident testing
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State and Local Law Considerations
4.4.
Random Testing
― Random testing (periodic, suspicionless testing in which
employees are selected without advance notice) is the
most heavily regulated and scrutinized type of testing
― That said, employees can be subject to random drug
and/or alcohol testing by their employers in many states,
including in states that have drug and alcohol testing
statutes
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State and Local Law Considerations
― In several states, including California, Massachusetts, New
Jersey, and West Virginia, the courts balance an employer’s
competing or legitimate interests against employees’ privacy
rights in determining whether random drug testing is
permissible, and have held that random testing should be
limited to employees in safety- or security-sensitive positions
― Random testing is regulated by statute, but permitted, in
Connecticut, Maine, Minnesota, Montana, and Oklahoma,
although the restrictions in the Maine statute cause many
employers to refrain from conducting random tests
― Random testing is prohibited in Boulder, Rhode Island, and
San Francisco, and is prohibited in Vermont unless the
testing is required by federal law or regulation
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State and Local Law Considerations
5. Return-to-duty, rehabilitation, and follow-up testing
―
Generally, an employee can be subjected to return-to-duty,
rehabilitation, and follow-up testing after he/she tested positive
and remains employed by an employer.
―
A few jurisdictions place some restrictions on these forms of
testing
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State and Local Law Considerations
6. Miscellaneous
―
Employers may be prohibited from or incur substantial risk in
conducting other types of drug and/or alcohol tests, such as mass
testing, pre-placement testing, testing upon the filing of a workers’
compensation claim by an employee, or testing upon a employee’s
return from a leave of absence, by statute, ordinance, or the
common law in a number of jurisdictions
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State and Local Law Considerations
Other Statutory Restrictions
In addition to placing limits on the types of testing
employers may conduct, some jurisdictions:
•
•
•
•
•
Impose written policy and notice requirements
Regulate the specimen collection and testing process
Impose rehabilitation requirements
Restrict employers’ disciplinary actions against employees
who test positive
Mandate appeal procedures
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Medical Marijuana
• Confusion reigns: what is an employer to do?
•
Conflicting “expert” opinions
• Federal law: Controlled Substances Act
•
No currently accepted medical use in treatment
• State law: 16 states and the District of Columbia have enacted laws
that decriminalize or authorize, to varying degrees, the use of
marijuana for medicinal purposes
• How should an employer reconcile the conflict?
• Should an employer adopt a specific rule regarding applicants’ and
employees’ use of medical marijuana?
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Illinois Law
• Compassionate Use of Medical Cannabis Pilot Program
Act
• Effective January 1, 2014
• Recognizes beneficial uses cannabis in treating or
alleviating pain, nausea and other symptoms associated
with medical conditions
• Allow medical use of cannabis in accordance with the
Act
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Illinois Law
• Employers are allowed to adopt reasonable regulations
concerning consumption, storage or timekeeping
requirements for qualifying patients related to use of
medical cannabis
• Employer not prohibited from enforcing a policy
concerning drug testing, zero-tolerance or drug free
workplace provided policy applied in non-discriminatory
manner
• Employer not limited from disciplining a registered
qualifying patient for violating workplace drug policy
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Illinois Law
• Employer not limited from disciplining an employee for
failing a drug test if failing to do so would put employer in
violation of federal law or cause it to lose federal
contract or funding
• The Act cannot create a defense for a third party who
fails a drug test
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Illinois Law
• Employer can consider registered qualifying patient to be “impaired” when
he or she “manifests specific, articulable symptoms while working that
decrease or lessen his or her performance of the duties or tasks of the
employee’s job position, including symptoms of the employee’s speech,
physical dexterity, agility, coordination, demeanor, irrational or unusual
behavior, negligence or carelessness in operating equipment or machinery,
disregard for the safety of the employee or others, or involvement in an
accident that results in serious damage to equipment or property, disruption
of a production or manufacturing process, or carelessness that results in
any injury to the employee or others. If an employer elects to discipline a
qualifying patient under this subsection, it must afford the employee a
reasonable opportunity to contest the basis of the determination.”
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Illinois Law
• Law does not create or imply a cause of action for any
person against an employer for:
(1) actions based on the employer’s good faith belief that a
registered qualifying patient used or possessed cannabis while on
the employer’s premises or during the hours of employment;
(2) actions based on the employer’s good faith belief that a
registered qualifying patient was impaired while working on the
employer’s premises during the hours of employment;
(3) injury or loss to a third party if the employer neither knew nor
had reason to know that the employee was impaired.
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WORKPLACE VIOLENCE
Program Objectives
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•
•
•
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Defining Workplace Violence
Discuss Legal Duties and Rights
Developing Workplace Violence Policies
Predictors of Workplace Violence
Responding to a Hostile Employee or
Other Threat
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Workplace Violence by the Numbers
• Employers spend $4.2 Billion/year due to workplace
violence.
• More than 1000 homicides occur at work each year.
• Most common type of workplace victimization is simple
assault.
• Domestic violence is the 3rd leading source of conflict
leading to death in the workplace.
• Workplace violence is estimated to cost employers
nearly two million lost workdays annually.
• An average damage award by a jury arising out of an
incident is $3 million.
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Defining Workplace Violence
• “Violence” means the attempted, threatened, or actual
conduct that causes and/or is likely to cause injury,
including any threatening statement or behavior which
gives an employee reasonable cause to believe that
he/she or other worker is at risk of injury.
• Violence can include verbal and non-verbal conduct,
physical harm, product damage and electronic
communications.
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Defining Workplace Violence
• Type I
• Type II
• Type III
• Type IV
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Individual with no connection to
workplace commits a crime.
A violent act by an individual directed
to an employee at the workplace by
customer/client.
Violent act by a current/former employee
directed at another employee.
Violent act at the workplace by a
another person who has a
relationship with an employee.
Employer Legal Duties
• Employment Discrimination Laws
• Prevention of Workplace Harassment which may lead to violence
•
•
•
•
•
•
•
Race
Sex
Ethnicity
National Origin
Religion
Disability
Age
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Employer Legal Duties
• Occupational Safety and Health Act (OSHA)
• Employer has a General Duty to furnish each employee
with a place of employment which is free from
“recognized” hazards that are causing or likely to cause
death or serious physical harm to employees
• Workplace Violence is a recognized hazard
• Enforced with citations and monetary penalties
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Employer Legal Duties
• Common Law
• Intentional Tort – Employer conduct is intentional and Injured
Employee is not limited to Worker’s Compensation damages
• Negligence – Employer fails to act “reasonably” and injured third
party (customer, outside contractor) can recover damages
• Negligence includes Negligent Hiring, Negligent Retention,
Negligent Supervision, Negligent Training
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Employer Legal Duties
• Employer Liability for Worker’s Compensation benefits to
Employee for Injury “arising out of and in the course of
employment.”
• WC is strict liability
• Includes death benefits, temporary and total disability,
medical expenses
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OSHA ENFORCEMENT
• OSHA has established Elements of a Workplace
Violence Prevention Policy:
• Management Commitment and Employee Involvement
• “Zero Tolerance” (but not necessarily automatic termination)
• Worksite Analysis
• Hazard Prevention and Control
• Safety and Health Training
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ELEMENTS OF AN EFFECTIVE ANTIVIOLENCE POLICY
• Clear Statement of Policy
•
•
•
•
•
“Zero tolerance”
Definition of prohibited acts or threats
Examples of prohibited acts or threats
Responsibility to report acts or threats
Encouragement of EAP use
• Identification of Response Team (Security, HR, Legal,
Management, Psych Consultant)
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ELEMENTS OF AN EFFECTIVE ANTIVIOLENCE POLICY (cont.)
•
•
•
•
Response Plans - (Weapons?)
Early Warning Signs (with caveats)
Actions as Indicators (with caveats)
Managers’ Responsibilities
•
•
•
•
Communicate Policy to Employees
Know Response Team and Plan
Be Alert to Warning Signs
Seek Advice or Assistance from Team
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Managers are wrong only if they:
• Don’t Consider Safety First
• Don’t Ask the Right Questions
• Don’t Communicate Concerns Clearly and Early
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Potential Problem Sources:
• Mishandled Termination or Discipline
• Disgruntled Former Spouses or Significant Others
• Weapons or Drugs on work site
• Retaliation by “Accused”
• Inadequately Trained or Overzealous Security Personnel
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Guns in the Workplace
• Carrying Concealed Weapons (CCW) laws set forth the
requirements for an individual to carry a concealed
firearm in public—vary by state.
• Most states now allow citizens to carry concealed
weapons in public. (Only DC does not).
Employers must consider their policies with respect to
guns in employee cars or in the workplace. Policies will
require a state-by-state analysis.
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Illinois Law
• Illinois adopts Firearm Concealed Carry Act
• Contains 23 prohibited areas for concealed carry permits
• Owner of private real property may prohibit carrying of
concealed firearms on the property under his or her
control
• Owner must post a sign indicating that concealed
firearms are prohibited on property
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Illinois Law
• The signage must be clearly and conspicuously posted
at the entrance of a building, premises or real property
• Signage must be 4 inches by 6 inches
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Illinois Law
• Licensee is permitted to carry a concealed firearm on or
about his or her person within a vehicle into the parking
area
• Licensee may store firearm and ammunition concealed
in a “case” within a locked vehicle or locked container
within the vehicle in the parking area
• Case includes glove compartment, console, trunk of a
vehicle, firearm carrying case or other container in which
firearm and ammunition are out of plain view
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Reason to Train Employees
• Workplace Violence behavior is rarely spontaneous
• Conduct which leads to workplace violence is displayed with early
warning signs
• Early warning signs are observed by or expressed most frequently
to co-workers before managers become aware
• Unless non-supervisory employees are trained to recognize and
timely report such conduct to managers, Employer cannot respond
effectively
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Conclusion
• Workplace Violence is a continuing and increasing
workplace safety hazard
• Employers must develop effective policies
• Policies must be communicated to Managers
• Non-Supervisory Employees must be trained to be alert
and to report to Managers immediately any conduct that
appears to violate Policy
• Employer Policy must be activated as soon as
threatening conduct is reported
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Thank You.
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