What To Do About MUI: Managing Under the Influence

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Risks surrounding employment practices continue to evolve and pose difficult challenges for risk managers. Sound policies depend upon identifying these risks and developing mitigation practices to address those exposures. For example, what should a company’s policy be when an employee is arrested for driving under the influence? Does the company fire the employee? Does it matter whether the employee drives a truck or a car or whether the job requires the individual to drive? What happens if the infraction took place during company hours versus on personal time? How does the company handle an employee who was cited for texting or talking on the phone while driving? What if the employee was involved in an accident? Can a company quantify risks associated with different employment practices? In this session, the panel will discuss these issues including the risks associated with different policies as well as what kinds of things a company can do to mitigate these exposures.

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What To Do About MUI: Managing Under the Influence

  1. 1. Max KoonceSenior Director, Risk Management, Walmart Stores, Inc.Ron ThackerySenior Vice President, Professional Services, Emergency Medical Services CorporationDarrell BrownChief Performance Officer, SedgwickTuesday, April 23, 2013Session Time: 2:15 to 3:30 p.m.
  2. 2. IntroductionsMax KoonceSenior Director, Risk ManagementWalmartRon ThackerySenior Vice President, Professional ServicesEmergency Medical Services CorporationDarrell BrownChief Performance OfficerSedgwick
  3. 3. Under the influence of?
  4. 4. Federal law - marijuana• Controlled Substances Act (CSA)• Scheduling and approval of drugs, including marijuana, must bebased on both legal and scientific criteria:• High potential for abuse• Drug not currently accepted for medical use in treatment in U.S• Lack of accepted safety for use of the drug under medical supervision• Department of Health and Human Services (HHS)• Provided scheduling recommendations• Drug Enforcement Administration (DEA)• Reviewed and denied petition to schedule marijuana• Department of Justice Guidelines (DOJ)• Violation of federal law• Subject to federal enforcement action, including prosecution
  5. 5. State laws• 18 states and the District of Columbia have laws legalizingmedical marijuana• Alaska, Arizona, California, Colorado, Connecticut, District of Columbia,Hawaii, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada,New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington• 2 states legalized marijuana for adults in 2012• Colorado and Washington
  6. 6. Court casesRaich v. Gonzales (U.S. Supreme Court, 2005)Emerald Steel Fabricators v. Bureau of Laborand Industries of State of Oregon (2010)California Ross v. Raging WireTelecommunications (2008)Casias v. Walmart (Michigan, 2012)
  7. 7. What about legal prescription drugs?
  8. 8. Max KoonceSenior Director, Risk ManagementWalmart Stores, Inc.
  9. 9. Walmart Stores, Inc. is comprised of:Walmart U.S. (approx. 1,400,000 associates)• 4,005 Walmart Retail Stores• 620 Sam’s Clubs• 142 Distribution CentersWalmart International (approx. 800,000 associates)• 6,148 Retail Units• 27 Countries
  10. 10. Alcohol and drug free workplace policy1. Vital interest in maintaining a safe, healthyand efficient environment for Walmartassociates, suppliers and customers2. Committed to maintaining an alcohol anddrug free workplace3. Alcohol and illegal drug use pose a seriousthreat to workplace safety, health, andproductivity4. Walmart strictly forbids improper use ofdrugs / alcohol
  11. 11. Alcohol and drug free workplace policy (cont.)5. Admission prior to testing request:• If an associate self-reports: Employed a minimum of 180 days with the company Reports to a salaried member of management Provided a leave of absence Signs last chance agreement which provides:• Enrollment in a substance abuse treatment program• Certification that program was completed• Periodic drug screens for following 12 months
  12. 12. Types of testingPre-employment ReasonablesuspicionPost-accidentPromotionscreeningTransfer to safetysensitive position
  13. 13. Definitions• Definition of positive alcohol screens• % blood alcohol concentration• Definition of positive drug screens• Illegal drug: At or above the detection level for that drugaccording to the Federal Substance Abuse and MentalHealth Services Admin.• Prescription drug: At a level in excess of the prescribed amount Other than for the condition for which the drug was prescribed Other than the prescribed method for using the drug; or Without a valid prescription• Conduct of screens / testing
  14. 14. Consequences of positive test
  15. 15. Legal interactionWrongful termination• Pretext• Medical marijuanaWorkers’ compensationclaims• Impact on benefits /compensability• Opioid use in medical treatmentAmericans withDisabilities Act• Medical marijuana (CA case)General liability - impairedwhile in accident• Deviation from employment• Insurance coverage
  16. 16. Additional concerns• Wireless device use while driving companyvehicles:– Comply with state laws:• Texting while driving• Hands free– Safety first:• Guidelines on call duration• Traffic congestion• Poor road / weather conditions
  17. 17. Additional concerns• What happens if the associate is involved in an accident?• Cell phone records could be requested• Elevated level of accountability if the cell phone was in use attime of accident• Medical marijuana
  18. 18. Ron ThackerySenior Vice President, Professional ServicesEmergency Medical Services Corporation
  19. 19. State reactions
  20. 20. Washington / Colorado
  21. 21. Colorado
  22. 22. Colorado - higher education
  23. 23. Emergency medical services corporationMedical transportation• 3.4 million transports• 8% share of total ambulance market• 21% share of private provider ambulance marketServices offered• 911 emergency• Inter-facility transfers (non-emergency)• Fixed wing air ambulance• Managed transportation• Disaster response (FEMA)• International• Site-basedOutsourced facilities based physicians• 8 million patient encounters• 8% share of ED services market• 12% share of outsourced ED services marketServices offered• Emergency department• Hospitalist / inpatient• Anesthesiology• Radiology / teleradiology• Acute surgery centers
  24. 24. Alcohol and drug free workplace policy• Pre-employment drug testing• Reasonable suspicion drug & alcohol testing• For cause drug & alcohol (collisions, >2 WC claims in 12 months,missing or altered drugs, open container, presence of controlledsubstances/paraphernalia)• Limited random drug & alcohol testing• Last chance - self disclosure, treatment with follow up testing
  25. 25. Alcohol and drug free workplace policy• Refrain from alcohol consumption at least 8 hours prior to start of duty• Prohibited use, possession, manufacture, distribution and sale ofcontrolled substances or illicit drug paraphernalia• Report use of a prescribed or over the counter drug that may impairbehavior, alertness, mental ability, driving, patient care• Prescriptions must be in the name of the user• Notify management if arrested or convicted for criminal use/abuse ofdrugs or alcohol
  26. 26. Alcohol and drug free workplace policy• Testing methods• Saliva based screening• Confirmation - DOT lab based drug screening• Confirmation - DOT BAT testing for alcohol• Positive tests - follow DOT criteria• Outcome - zero tolerance for positive tests• Reapply after 36 months
  27. 27. Practical applicationOutcomesLogistics - testing,transportation,communication ofresultsDifficult time or anew beginningSelf disclosure -facing your peers
  28. 28. Left field - every once in a while

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