Knapp Trimboli & PrusinowskiandPrevention First How to Build, Implement and Sustain a Drug-Free Work Place
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.
Today’s Session Introductions Just the facts: Illegal drug use and the workplace Building the drug free program and policy that works for your business Implementing a drug testing program Implementing a drug detection program (addressing possession and distribution issues onsite and in fleets) Employee privacy and discrimination considerations Policy into practice: options and resources
Drugs at the Workplace 70% of drug abusers are employed, and, on average, they found jobs in companies with no drug policy or poorly implemented programs* Costs: 40% of all industrial fatalities 33% less productive 300% higher medical costs and benefits than non-abusers 1%-10% payroll costs Drug use and Safety are the top concerns for NJ business (small, med and large)* * Partnership for Drug Free New Jersey workplace report 1/09
Signs Workplace indicators Absenteeism Incidence of accidents Turnover Workers compensation and Healthcare costs Moral Employees at risk
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.
What drugs are typically tested for
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.
Reasonable Suspicion Testing 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.” Reasonable suspicion testing is lawful in New Jersey for both the public and private sectors.
Reasonable suspicion testing is mandatory for private and public sector employers of CDL holders.
Being in an area to which access is limited and the odor of marijuana is present.
What is NOT Reasonable Suspicion 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. Unsubstantiated rumors of drug or alcohol use. Poor job performance, standing alone, is not sufficient to give rise to a “reasonable suspicion” of drug use.
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.
Other Types of Drug Testing
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.
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.
Drug Tests as “Medical Examinations” Are not considered “medical examinations” under ADA; not affected by the ADA’s limitations on medical examinations. Not governed by HIPAA.
Impairment By Prescription or Other Medication
ADA prohibits employers from asking employees to disclose the medications they are taking.
In environments where safety is an issue, can ask employees to advise whether there is any reason why they may be impaired.
May explain that being unimpaired is an essential job function, and ask if the applicant will be able to meet this requirement.
After making a conditional offer of employment, may inquire into prescription drug use – but may withdraw offer only under very limited circumstances.
Union Issues Public Sector: decision to test and the substantive aspects of testing are NOT negotiable; procedures and disciplinary penalties ARE negotiable. Private Sector: drug/alcohol testing is mandatorily negotiable.
Testing is Not Enough – Combating Substances Brought on Premises
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.
Testing is Not Enough – Combating Substances Brought on Premises
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.
Resources Legal Education Prevention First OSHA Partnership for Drug-Free America: Drugs Don’t Work NJ Substance Abuse Help Prevention First County Departments of Health and Human Services Drug Testing Labs and Kits Drug Detection Firms
Next steps Join our program on July 16th 12-1:00pm Drug Users on Your Payroll: Drug Recognition, Concealment Strategies and Intervention We will cover: Physical signs Behavioral indicators (users and dealers) Concealment strategies Testing and Hiding When and how to intervene and barriers to intervention