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Marijuana, Opioids and State Laws – What HR Teams Need to Know

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Today, 29 states permit the use of marijuana for medical conditions and nine have authorized its personal use for anyone 21 and older. Many states limit adverse employment action for medical marijuana use, and in Maine, employers can’t discriminate against an employee for off-duty marijuana use.

As more states legalize marijuana – and many also deal with the opioid epidemic – employers will be faced with challenges related to state human rights issues, state compliance issues and the increasing cost of noncompliance.

Arm yourself with the most up-to-date information on drug testing and compliance with this deck: "Drug Testing: The Impact to State Laws and Employers."

Published in: Recruiting & HR
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Marijuana, Opioids and State Laws – What HR Teams Need to Know

  1. 1. Medical Marijuana Prescription Drugs State Law Compliance & More Bill Judge Laura Randazzo March 27, 2018
  2. 2. Presented By Bill Judge Attorney and co-founder of Encompass Compliance Corp Laura Randazzo VP of Compliance CareerBuilder Employment Screening Today’s Speakers
  3. 3.  Over 40 Years of Workplace Drug and Alcohol Testing.  Approximately 45 million tests done each year.  Evolving Issues Present More Complicated Issues For Management Each Year. Overview of Drug Testing Industry
  4. 4. Cost of Non-Compliance Ranging between $30,000 & $2 million
  5. 5. Presented By 4/6/2018 Because our time is short, let’s focus on: 1. Marijuana at work; 2. Prescriptions (Opioids) and ADA; 3. OSHA and drug testing. 4. State-specific Compliance Rules
  6. 6. Presented By State Compliance Employer Marijuana Issues Workers’ Comp Opportunities ADA & Drug/AlcoholOSHA Key Agency Decisions Unemployment Federal Rules NLRB (Unions) Key Court Cases State Compliance Marijuana Issues Workers’ Comp Opportunities Key Agency Decisions Unemployment Federal Rules NLRB (Unions) Key Court Cases
  7. 7. Presented ByMedical Marijuana
  8. 8. Federal Position 1. Congress- Budget Limits on DOJ/DEA action 2. Native American Guidelines 3. Directive re: “hands off” approach. 4. DOT
  9. 9. State Laws Differ 1. Marijuana, 2. Smokeless, 3. CBD don’t be confused
  10. 10. Today . . .  29 states and Washington, DC that authorize medical use of marijuana  9 states authorize personal and medical use for any over 21.
  11. 11. State Laws Differ
  12. 12. Need Not Accommodate These 13 states statutes specify that employers need not accommodate use or an employee being under the influence of marijuana at work. The language of some states varies, such as Illinois, Ohio, and Pennsylvania with is more protective of employers. But, Nevada and New York require employers to at least determine if the employees medical issues can be accommodated.
  13. 13. 8 states’ laws . . . Provide that an employer may not discriminate against an individual due to that individual’s STATUS as a qualified medical marijuana patient.
  14. 14. Employer Can Take Action if . . . In these 9 states an employer is specifically authorized the take action if an employee if found to be using or under the influence of marijuana on duty.
  15. 15. 3 states . . . Employer can discipline for being under the influence . . . But a positive test alone is not proof of being under the influence.
  16. 16. Workers’ Compensation Cost of Marijuana Reimbursement
  17. 17. Sample State Language Arizona: §36-2814 (A)(1): A. Nothing in this chapter requires: 1. A government medical assistance program, a private health insurer or a workers' compensation carrier or self-insured employer providing workers' compensation benefits to reimburse a person for costs associated with the medical use of marijuana.
  18. 18. Recent Key Court Cases
  19. 19. Latest court rulings have favored employees.
  20. 20. State Human Rights Laws Further Complicate The Issue
  21. 21. Barbuto v. Advantage Sales and Marketing, LLC, and another, SJC-12226, 477 Mass. 456, 78 N.E.3d 37 (7-17-17) the Court relied on state law to find that the employer discriminated against the employee who was also a medical marijuana patient. The Court rejected ASM’s argument that, because the use of marijuana is a crime under federal law, any accommodation would be unreasonable. The Court equated medical marijuana to any other prescribed drug and said: The Court said, a “qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer” and “may seek a remedy through claims of handicap discrimination in violation of state prohibited practices law. (G. L. c. 151B §4(16)). State Human Rights Laws – An Example
  22. 22. The Prescription (Opioid) Drug Epidemic How Do You Deal With It At Work?
  23. 23. CDC – Latest Numbers Drug overdose deaths and opioid-involved deaths continue to increase in the United States. The majority of drug overdose deaths (more than six out of ten) involve an opioid.  Since 1999, the number of overdose deaths involving opioids (including prescription opioids and heroin) quadrupled.  91 Americans die every day from an opioid overdose.  Since 1999, the amount of prescription opioids sold in the U.S. nearly quadrupled,  Deaths from prescription opioids—drugs like oxycodone, hydrocodone, and methadone—have more than quadrupled since 1999. https://www.cdc.gov/drugoverdose/epidemic/index.html
  24. 24. Prescriptions @ Work in the Midwest Source: The Midwest Policy Institute: https://midwestepi.files.wordpress.com/2018/02/opioids-and-construction- final2.pdf Recent Study, shows nearly 1,000 construction workers across the Midwest died from an opioid overdose
  25. 25. Prescriptions @ Work The opioid epidemic cost a Midwest Company an estimated $5.2 billion Illinois $867 million; Minnesota $292 million; Indiana $450 million; Ohio $2 billion; and Iowa $168 million; Wisconsin $524 million. Michigan $858 million; Source: The Midwest Policy Institute: https://midwestepi.files.wordpress.com/2018/02/opioids-and-construction- final2.pdf
  26. 26. Roadblocks To Employer Action
  27. 27. How the ADA limits Employer drug testing programs: 1. What substances are tested; -- Legal vs. illegal drugs 2. Requirement that employees report medications they are taking. -- safety vs. non-safety positions
  28. 28. 42 U.S.C. § 12114 (a) Qualified individual with a disability For purposes of this subchapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. (b) Rules of construction: Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who— (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or (3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs.
  29. 29. 42 U.S.C. §12114(d)(1) provides: (d) Drug testing (1) In general For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination. (2) Construction Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.
  30. 30. What is a "disability-related inquiry"? A "disability-related inquiry" is a question that is likely to elicit information about a disability, such as asking employees about: whether they have or ever had a disability; the kinds of prescription medications they are taking; and, the results of any genetic tests they have had. Source: file:///Users/williamjudge/Documents/aaaEncompass/AAAResearch/ADA-drug-prescriptions/EEOC- Guidance/Questions%20and%20Answers%20%20Policy%20Guidance%20on%20Genetic%20Testing.ht ml
  31. 31. Can You Require Employees to Report Medications They are Taking? 8. May an employer ask all employees what prescription medications they are taking? Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.
  32. 32. Under these limited circumstances, an employer must be able to demonstrate that an employee's inability or impaired ability to perform essential functions will result in a direct threat. Source: file:///Users/williamjudge/Documents/aaaEncompass/AAAResearch/ADA-drug- prescriptions/EEOC- Guidance/Questions%20and%20Answers%20%20Policy%20Guidance%20on%20Genetic%20Testin g.html
  33. 33. Post-Accident Limitations
  34. 34. Important dates: May 12, 2016 Final Rule: “Improve Tracking of Workplace Injuries and Illnesses.” December 1st effective date. (Could be extended to December 1st.) On July 12th a federal lawsuit was filed seeking to enjoin OSHA from enforcement of the rule. July 13th OSHA postponed enforcement of the new rule until November 1st. OSHA explained that the delay was necessary to conduct “additional outreach to the regulated community.”
  35. 35. If the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness then it would be objectively reasonable to subject the employee to a drug test. Reasonableness will be determined by considering: 1. Whether the employer had a reasonable basis after concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), 2. Whether other employees involved in the incident that caused the injury or illness were also tested, or 3. Whether the employer only tested the employee who reported the injury or illness, and 4. Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
  36. 36. 22 Approved State Plan States
  37. 37. State Law Compliance
  38. 38. Mandatory States There are 21 states with rules that MUST be followed if a private employer wishes to conduct drug testing. Note: 3 states are mandatory due to medical marijuana rules and 4 due to both medical marijuana and drug testing rules.
  39. 39. • 7 states limit discipline: (IA, ME, MN, OH, PR, RI, VT) • 11 states & 2 cities limit or prohibit random tests (AK, CA, CT, ME, MA, MN, MT, NJ, RI, VT, WV – Boulder, CO & San Francisco) • 6 states (1 city) prohibit observed collections (CT, ME, PR, RI, VT, BOULDER, CO) • 18 states & 2 city require a split/retest opportunity (AL, ID, IA, LA, ME, MD, MN, MS, MT, NC, OH, OK, PR, RI, TN, VT, WI, Boulder, CO & DC) • 14 states and 1 city limit/prohibit hair testing (AK, AR, CA, CT, IA, KS, MN, NE, OH, PR, TN, TX, VT, WY, AND DC.) • 7 states specifically permit hair testing (FL, LA, MD, NV, NC, OK, UT.) Some Compliance Requirements
  40. 40. • 5 states and 2 cities do not allow post-accident testing (CT, ME, RI, VT, WV and San Francisco and Boulder) • 16 states specify timing to request split test (AL, AK, AR, FL, GA, HI, IA, LA, ME, MN, MS, MT, OK, RI, TN, T, VT) • Different cutoff levels (e.g. FL, HI, KS, ME, MN, OK) • Requires Employer to pay for split/retest (RI, San Francisco, CA) • Collector must be registered with the state and pay a fee (MD, OK, OR) • Prohibits breath tests (e.g. FL, MD, MN) These are just a sample of compliance requirements
  41. 41. $40,000 IA - S&J Tube, Inc. (9/06/12) (re-defined accident). $450,000 CT- UPS (2010); $50,000 to the Supervisor PERSONALLY!! (Post-Accident) $750,000 OK – ConocoPhillips (2009) –(Collector issue). $$$$$$ MN – ING Bank – (2008) fired for positive drug test. $68,000 IA – Truck Country of Iowa (2005) - ER must pay for tests. $$$$$$ CT – Home Depot (1996) – accident alone NOT reasonable suspicion. Cost of Non-Compliance
  42. 42. Where do you start?
  43. 43. Rebuttable Presumption Of Intoxication Workers Compensation Claim Defense 18 states AL KS OH AR LA OK CO MO TN FL NC TX GA ND VA IL NV UT
  44. 44. Policy is one thing . . . “The paper means nothing If it doesn’t come to life through proper procedures.” Procedures are another
  45. 45. Questions? 47
  46. 46. Presented By 4/6/2018 Request a Demo Click the link to learn more about CareerBuilder’s Employment Screening Solutions https://cb.com/2FDsEVh
  47. 47. Presented By Professional Development Certification Credits SHRM & ASA We recognize the value in continuing education. As a result of attending this webinar, you are able to earn: 1.0 CE credits through SHRM and ASA SHRM • Follow the instructions on the SHRM Certification Page • Input the following Activity 18-8BUZC ASA • Follow the instruction found here to submit for your credit
  48. 48. William J. Judge, JD, LL. M Chief Research Officer Encompass Compliance Corp. 708-334-8010 bjudge@encompinc.com

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