Costshigher absenteeism; more accidents; higher health care costs; more theft; workplace violence; decreased productivity; lower profits to your bottom linSmaller firms may be particularly disadvantaged by worker substance use and abuse. For example, while about half of all U.S. workers work for small and medium sized businesses (those with fewer than 500 employees)29, about nine in ten employed current illicit drug users and almost nine in ten employed heavy drinkers work for small and medium sized firms.30 Likewise, about nine in ten full-time workers with alcohol or illicit drug dependence or abuse work for small and medium size firms.31 However, smaller firms are generally less likely to test for substance use.32 (29 statistics of U.S. Businesses, 2005, U.S. Census Bureau, available at http://www.census.gov/csd/susb/index.html30 Larson, S.L., Eyerman, J., Foster, M.S., and Gfroerer, J.C. (2007). Worker Substance Use and Workplace Policies and Programs (DHHS Publication No. SMA 07-4273, Analytic Series A-29). Rockville, MD: Substance Abuse and Mental Health Services Administration, Office of Applied Studies.)70% of all illegal drug users are currently employed40% of all industrial fatalities33% less productive300% higher medical costs and benefits than non-abusers1%-10% payroll costs
http://www.dol.gov/asp/programs/drugs/workingpartners/stats/wi.aspThe major industry groups with the highest prevalence of illicit drug use in the past month were accommodations and food services and construction, and those with the lowest prevalence were the utilities industry, educational services, and public administration.12 About 16.9 percent of workers in the accommodations and food services industry and 13.7 percent of workers in the construction industry reported illicit drug use in the past month.13According to 2002-2004 data, among full-time employed persons diagnosed with a substance use disorder, those ages 18-25 had the highest rates of substance use disorder relative to those in other age categories.10
Drug Free Workplace Presentation 5 18
Knapp Trimboli & PrusinowskiandPrevention First<br />How to Build, Implement and Sustain a Drug-Free Work Place<br />
This presentation is for informational purposes only and is not intended as a substitute for legal advice. Any employer who wishes to adopt a drug-free workplace policy or institute drug testing is strongly advised to obtain and consult with competent counsel experienced in this field.<br />
Today’s Session<br />Introductions<br />Just the facts: Illegal drug use and the workplace<br />Building the drug free program and policy that works for your business<br />Implementing a drug testing program<br />Implementing a drug detection program (addressing possession and distribution issues onsite and in fleets)<br />Employee privacy and discrimination considerations<br />Policy into practice: options and resources<br />
Drugs at the Workplace<br />70% of drug abusers are employed, and, on average, they found jobs in companies with no drug policy or poorly implemented programs*<br />Costs:<br />40% of all industrial fatalities<br />33% less productive<br />300% higher medical costs and benefits than non-abusers<br />1%-10% payroll costs<br />Drug use and Safety are the top concerns for NJ business (small, med and large)*<br />* Partnership for Drug Free New Jersey workplace report 1/09 <br />
Signs<br />Workplace indicators<br />Absenteeism<br />Incidence of accidents<br />Turnover<br />Workers compensation and Healthcare costs<br />Moral<br />Employees at risk<br /><ul><li>Workforce age
Where to go for help.</li></ul>Please note that DOL strongly recommends that you have your policy reviewed by a legal consultant, such as a labor/employment attorney, prior to distribution and implementation.<br />
Historical Perspective<br /><ul><li>Employer drug/alcohol testing started to emerge approximately 25-30 years ago. Response to prevalence of abuse in the workplace.
Federal regulations mandating substance testing in transportation, and become a model for reliable testing that safeguarded employee rights and emphasized treatment rather than punishment.
General recognition by the courts, Congress and states that employers have a legitimate interest in using testing as a means of maintaining an unimpaired work force, especially when safety issues are present.
Testing became more reliable, and employers became smarter – using trained professionals to address issues of reliability, chain of custody, privacy/confidentiality, and treatment.</li></li></ul><li>What drugs are typically tested for<br /><ul><li>Alcohol</li></ul> <br /><ul><li>Cocaine</li></ul> <br /><ul><li>Marijuana</li></ul> <br /><ul><li>Amphetamines</li></ul> <br /><ul><li>Phencyclidine</li></ul> <br /><ul><li>Opiates</li></li></ul><li>Random Testing<br /><ul><li>Employees selected for testing “at random” without any reason to believe they are actively using drugs or abusing alcohol.
Random selection by computer-generated random number or similar process. Should truly be random (e.g., cannot “suggest” that certain persons end up on the test list).
Private sector: permitted in New Jersey only for employees who hold safety-sensitive positions where the need to assure sobriety in the workplace is clear, e.g., a night supervisor responsible for the safe operation of an oil refinery.
Public sector: permitted in New Jersey only for employers who have a special need to assure that employees holding safety-sensitive positions are capable of performing their functions safely, e.g., police and firefighters.
Private and public sector employers of CDL holders: Random testing is mandated by USDOT regulation and must be conducted in accordance with USDOT standards.</li></li></ul><li>Reasonable Suspicion Testing<br />Reasonable suspicion requires objective facts which, with inferences, would lead a reasonable person to conclude that drug-related activity is taking or has taken place and that a particular individual is involved in that drug activity. It is “the sort of common sense conclusion about human behavior upon which practical people-including government officials-are entitled to rely.”<br /> Reasonable suspicion testing is lawful in New Jersey for both the public and private sectors.<br /> <br /> Reasonable suspicion testing is mandatory for private and public sector employers of CDL holders. <br />
Examples of Reasonable Suspicion<br /><ul><li>Personal observation of an employee’s conduct, appearance, behavior, speech or odor. </li></ul>E.g., watery eyes, slurred speech, unsteady posture.<br /><ul><li>Information regarding an employee’s conduct, appearance, behavior, speech or odor obtained from a reliable source, or that is independently corroborated.
Being in an area to which access is limited and the odor of marijuana is present.</li></li></ul><li>What is NOT Reasonable Suspicion<br />Merely being “associated” with someone who is known to use drugs, absent additional reliable information suggesting drug use on the part of the suspected employee.<br />Unsubstantiated rumors of drug or alcohol use.<br />Poor job performance, standing alone, is not sufficient to give rise to a “reasonable suspicion” of drug use.<br />
Drug Testing of Applicants<br /><ul><li>Private sector employers in New Jersey: under Vargo v. National Exchange Carriers Ass’n, 376 N.J. Super. 364, 686 (App. Div. 2005), testing of applicants is lawful when all applicants are tested under an announced and established policy of applicant testing, and when applicant consents to test by way of execution of application or other document making the policy of applicant testing known to him/her.
Public sector employers in New Jersey: applicants may be subjected to testing when the employer can assert a special need such as public safety, or when the applicants seek employment in a highly regulated field such as law enforcement.
Private and public sector employers of CDL holders: Applicant testing is mandated by USDOT regulation and must be conducted in accordance with USDOT standards.</li></li></ul><li>Other Types of Drug Testing<br /><ul><li>Return to Duty Testing: Testing of an employee who has previously tested positive or has otherwise been found to have abused substances, prior to the employee’s return to duty.
Generally permissible under New Jersey law in both the public and private sectors.
Follow Up Testing: Testing of an employee who has previously tested positive or has otherwise been found to have abused substances, to assure compliance with substance abuse treatment program or “stay sober” mandate.
Unclear whether it will be permitted under New Jersey law in non-USDOT settings absent other evidence giving rise to a reasonable suspicion of drug/alcohol use.</li></li></ul><li>Drug Use as an Employment Issue<br /><ul><li>Current use is not a protected disability.
Having a prior history of abuse is protected, provided it is truly a prior history.
Under FMLA, drug addiction/dependency is a “serious medical condition” only to the extent the employee is obtaining treatment. An employee cannot receive FMLA leave for absences due to drug use.</li></li></ul><li>Alcohol as an Employment Issue<br /><ul><li>Alcoholism is a protected disability, but this does not excuse alcohol-related conduct in the workplace.</li></ul> <br /><ul><li>Rules prohibiting intoxication at work are enforceable.</li></ul> <br /><ul><li>Employee has obligation to put employer on notice of his/her alcohol disability before employee is disciplined, i.e., </li></ul> <br /><ul><li>Being an alcoholic is not a defense to workplace misconduct.</li></ul> <br /><ul><li>Employees cannot wait until they are being disciplined to raise alcoholism as a defense.</li></li></ul><li>“Regarding” Employees as Drug/Alcohol Abusers<br /><ul><li>Employees erroneously “regarded” as drug users/alcohol abusers are protected under disability laws.
Illinois case: “forcing” an employee to “admit” that she was an alcoholic when she was not.
Punish behavior, do not assume a substance problem.
Treatment/evaluation only as part of “mutual understanding.”
Vargo v. National Exchange Carriers Assoc.: An employer that is presented with a positive drug test from a reliable laboratory cannot be held liable for “erroneously regarding” an employee as a user of drugs.</li></li></ul><li>Drug Tests as “Medical Examinations”<br />Are not considered “medical examinations” under ADA; not affected by the ADA’s limitations on medical examinations.<br />Not governed by HIPAA.<br />
Impairment By Prescription or Other Medication<br /><ul><li>ADA prohibits employers from asking employees to disclose the medications they are taking.</li></ul> <br /><ul><li>In environments where safety is an issue, can ask employees to advise whether there is any reason why they may be impaired.</li></ul> <br /><ul><li>Police Departments
May explain that being unimpaired is an essential job function, and ask if the applicant will be able to meet this requirement.</li></ul> <br /><ul><li>After making a conditional offer of employment, may inquire into prescription drug use – but may withdraw offer only under very limited circumstances.</li></li></ul><li>Union Issues<br />Public Sector: decision to test and the substantive aspects of testing are NOT negotiable; procedures and disciplinary penalties ARE negotiable.<br />Private Sector: drug/alcohol testing is mandatorily negotiable.<br />
Testing is Not Enough – Combating Substances Brought on Premises<br /><ul><li>Canine Sniffs
Not considered “searches,” as they merely detect the presence of odors emanating from substances.
Bringing the canine into private property without permission of owner constitutes a “search;” but it is the invasion of private property, not the “sniffing,” that constitutes the “search.”
Canine’s detection of substances provides probable cause for search.
Private drug detection firms are available for sweeps and deterrence
Canine and operators must be trained and competent – certification.
Police may require “reasonable suspicion” for canine sniffs in certain circumstances.</li></li></ul><li>Testing is Not Enough – Combating Substances Brought on Premises<br /><ul><li>Searches of Employer Property (lockers, desks, etc.)
No expectation of privacy in employer’s property, especially when employees are placed on notice of employer’s intention to conduct searches of its property.
Expectation of privacy may arise by way of employer promise or representation, (e.g., employer provided employee with private desk to which employee alone has access).
Searches of Employee Property (purses, cars, etc)
Employee privacy rights balanced against employer’s special need to conduct search.
Consent</li></li></ul><li>Off-Duty Substance Abuse?<br />Can terminate those who use drugs off duty.<br />It’s illegal.<br />It is not a protected category even in cases of addiction.<br /> <br />Conduct prejudicial to the employer.<br />
What works<br />Philosophies and practices that can undermine<br /><ul><li>Focusing only on illicit drug use and failing to include alcohol-the number one drug of abuse in our society
Accepting drug use and alcohol abuse as part of modern life and a cost of doing business
Focusing on termination of users rather than rehabilitation
Reluctance of supervisors to confront employees on the basis of poor performance
Reinforcing an individual's denial regarding the impact of his or her alcohol and drug use
Restricting benefits and/or access to treatment of alcoholism and addiction
Allowing insurers to restrict access to treatment programs </li></ul>The characteristic common to all effective drug-free workplace programs is balance. <br /><ul><li>The rights of employees and the rights of employers
Where to go for help </li></li></ul><li>Resources<br />Legal<br />Education<br />Prevention First<br />OSHA<br />Partnership for Drug-Free America: Drugs Don’t Work NJ<br />Substance Abuse Help<br />Prevention First <br />County Departments of Health and Human Services<br />Drug Testing Labs and Kits<br />Drug Detection Firms<br />
Next steps<br />Join our program on July 16th 12-1:00pm<br />Drug Users on Your Payroll: Drug Recognition, Concealment Strategies and Intervention<br /> We will cover:<br />Physical signs<br />Behavioral indicators (users and dealers)<br />Concealment strategies<br />Testing and Hiding<br />When and how to intervene and barriers to intervention<br />