Strategic HR Management
Drug testing is not a new phenomenon.
Drug Free Workplace Act of 1988 led to
increasingly frequent requirement for
applica...
80% of employers require some sort of drug
testing from their workforce.
Myriad of devices and techniques to prevent
“mask...
Ongoing changes in social, economic and
regulatory pressures on drug use and testing.
Changes in the legal and regulatory
...
Acceptance of marijuana use is growing
among Americans.
Increasing awareness of prescription drug use
and abuse and the im...
A blanket drug free workplace policy may no
longer be appropriate, particularly in light of
prescription drug use and abus...
Marijuana use and medical applications go
back thousands of years.
Medical applications as a salve, anti-nausea,
diuretic ...
Increased regulation led to criminalization in
1970, with the Controlled Substances Act.
A wide range of drugs identifies ...
A small but growing opposition argued that
medical marijuana use in treating the
symptoms and side effects of various
canc...
Proposition 215 in California was the first
attempt to protect patients, caregivers and
physicians from state level prosec...
As of today, 23 states and DC permit medical
use of marijuana and 13 states are
considering it.
Most of the laws decrimina...
Little commonality on:
◦ How much cannabis may be legally possessed
(ranges from 1oz to 1.5 lbs.)
◦ How a patient acquires...
The lack of consistency makes it challenging
to make broad statements about medical
marijuana use.
Since it is a Schedule ...
Marijuana clearly remains illegal under federal
law, regardless of state laws.
Clinton administration sued states that
pas...
Awareness of Marinol (dronabinol).
Synthetic cannabis that is legal under federal
law (schedule 3 drug)
It provides many o...
Marinol is a pill to be swallowed and is slower
acting so does not provide the immediate
relief of cannabis.
It cannot be ...
Growing acceptance of non-medical use of
marijuana.
Most of the anti-marijuana stance and
criminalization is the result of...
2 states, Colorado and Washington, have
decriminalized non-medical possession and
use of marijuana.
As long as marijuana i...
Issues:
◦ Oversee sales and distribution
◦ Gather taxes
◦ Regulate the marijuana industry
◦ Safety concerns
Impaired drive...
The fundamental question, in light of the
evolving situation, is: do we need to
accommodate our employees’ ability under
s...
The vast majority of states that have medical
marijuana laws do not address an employee’s
right to consume cannabis.
While...
Decisions by courts in California, Washington,
Oregon. Colorado and the US District Courts
have supported the rights of an...
These decisions have been based on 2
primary points:
◦ Marijuana is still classified as a Schedule 1 drug by
the federal g...
Five states have some employee protection
under the law, but they vary from state to
state.
Connecticut states that employ...
Recreational marijuana laws do not prohibit
employers from taking adverse action against
an applicant or employee for cann...
Another issues is pre-employment drug
testing.
A difficult question is, do we need to shift
from testing solely for the pr...
Employers also seek to address safety
concerns when their workers use drugs
properly but are unable to work while under
th...
The CDC & P classified this as an epidemic
and the fastest growing drug problem in the
US, with 1 death every 19 minutes.
...
Prescription medications present other
challenges:
◦ Their mere presence does not constitute an offense
◦ Many of these em...
Employers have some latitude to inquire into, or even
test for, prescription drugs used by the employee.
Employees in safe...
Step one, fundamentals:
◦ Establish if your policy is adequate based on your
particular issues
◦ Create a list of the posi...
Step two, layer in complexity
◦ Engage your counsel
◦ Work with a medical review officer to understand
the drug testing pr...
Step three, address specific issues
◦ Determine if your organization is comfortable with
exceptions to the policy
◦ Ensure...
7/8/2014HRinfo4u.com 34
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Addressing drug use and changing legal and social

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How the changing attitudes and perceptions of drug use and abuse is changing and the impacts these changes will have on the workplace.

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Addressing drug use and changing legal and social

  1. 1. Strategic HR Management
  2. 2. Drug testing is not a new phenomenon. Drug Free Workplace Act of 1988 led to increasingly frequent requirement for applicants to take a drug test. Influences: ◦ Social pressure ◦ Regulatory mandates ◦ Health insurance costs ◦ Safety issues ◦ Concerns over liability and litigation 7/8/2014HRinfo4u.com 2
  3. 3. 80% of employers require some sort of drug testing from their workforce. Myriad of devices and techniques to prevent “masking” of controlled substances and to insure “control” of the sample. 7/8/2014HRinfo4u.com 3
  4. 4. Ongoing changes in social, economic and regulatory pressures on drug use and testing. Changes in the legal and regulatory framework of drug use. New laws at the state level address critical issues like the medical and recreational use of marijuana. Ever changing federal attitudes toward enforcement. 7/8/2014HRinfo4u.com 4
  5. 5. Acceptance of marijuana use is growing among Americans. Increasing awareness of prescription drug use and abuse and the impacts on the workplace. Two intertwined issues: ◦ Strong rates of recreational use ◦ Concerning trend of employee reporting to work under the influence of powerful prescription medications 7/8/2014HRinfo4u.com 5
  6. 6. A blanket drug free workplace policy may no longer be appropriate, particularly in light of prescription drug use and abuse. How do these changes impact our approach to drug use and workers who come to work under the influence? 7/8/2014HRinfo4u.com 6
  7. 7. Marijuana use and medical applications go back thousands of years. Medical applications as a salve, anti-nausea, diuretic and laxative. In the 19th century, cannabis was a popular pain reliever. in the 20th century, social attitudes to drugs like marijuana and morphine shifted, leading to stricter regulation. 7/8/2014HRinfo4u.com 7
  8. 8. Increased regulation led to criminalization in 1970, with the Controlled Substances Act. A wide range of drugs identifies for their potential for abuse, appropriateness for medical use and general safety. Marijuana and LSD are Schedule 1 drugs, illegal under federal law and identified as having no legitimate medical purpose. 7/8/2014HRinfo4u.com 8
  9. 9. A small but growing opposition argued that medical marijuana use in treating the symptoms and side effects of various cancers, HIV/AIDS, epilepsy, multiple sclerosis and glaucoma. 7/8/2014HRinfo4u.com 9
  10. 10. Proposition 215 in California was the first attempt to protect patients, caregivers and physicians from state level prosecution for the possession, use, cultivation or recommended use of medical marijuana. DOJ initiated criminal prosecution of physicians under federal law. Class action lawsuit, Conant v. Walters, permanent injunction by a federal court, allowing medical marijuana. 7/8/2014HRinfo4u.com 10
  11. 11. As of today, 23 states and DC permit medical use of marijuana and 13 states are considering it. Most of the laws decriminalize the therapeutic use of marijuana by individuals with serious health conditions. Broad diversity in the language of the various laws, though. 7/8/2014HRinfo4u.com 11
  12. 12. Little commonality on: ◦ How much cannabis may be legally possessed (ranges from 1oz to 1.5 lbs.) ◦ How a patient acquires the marijuana. (some allow home grown, other dispense it through a state system) ◦ The specific medications allowed under the law. ◦ The registration process the patient has to undergo. ◦ How a patient proves a medical marijuana exemption to law enforcement. 7/8/2014HRinfo4u.com 12
  13. 13. The lack of consistency makes it challenging to make broad statements about medical marijuana use. Since it is a Schedule 1 drug, physicians may not prescribe it, only recommend it to their patients as part of their therapeutic or palliative care. There is also no uniform guidance for which medical use is appropriate. 7/8/2014HRinfo4u.com 13
  14. 14. Marijuana clearly remains illegal under federal law, regardless of state laws. Clinton administration sued states that passed these laws. Bush administration raided facilities dispensing marijuana. Obama administration pursues individuals who cultivate, sell or distribute medical marijuana. 7/8/2014HRinfo4u.com 14
  15. 15. Awareness of Marinol (dronabinol). Synthetic cannabis that is legal under federal law (schedule 3 drug) It provides many of the same benefits as cannabis and can be prescribed. With natural cannabis, there is no standard dosage so physicians struggle with usage. 7/8/2014HRinfo4u.com 15
  16. 16. Marinol is a pill to be swallowed and is slower acting so does not provide the immediate relief of cannabis. It cannot be used to combat nausea and vomiting associated with some medical issues. 7/8/2014HRinfo4u.com 16
  17. 17. Growing acceptance of non-medical use of marijuana. Most of the anti-marijuana stance and criminalization is the result of its recreational use. Recent polls indicate that a small majority of Americans favor outright legalization of marijuana. (65% of millennials) 7/8/2014HRinfo4u.com 17
  18. 18. 2 states, Colorado and Washington, have decriminalized non-medical possession and use of marijuana. As long as marijuana is a Schedule 1 drug, outright legalization is a difficult legal issue. This tension creates problems for employers. 7/8/2014HRinfo4u.com 18
  19. 19. Issues: ◦ Oversee sales and distribution ◦ Gather taxes ◦ Regulate the marijuana industry ◦ Safety concerns Impaired drivers No easy, effective way to determine if a driver is under the influence of marijuana 7/8/2014HRinfo4u.com 19
  20. 20. The fundamental question, in light of the evolving situation, is: do we need to accommodate our employees’ ability under state law to consume or possess marijuana for medical or recreational purposes? Luckily, the guidance, with a few exceptions, has been relatively clear and consistent-as long as cannabis is illegal under federal law, we can take action against an employee who tests positive for it. 7/8/2014HRinfo4u.com 20
  21. 21. The vast majority of states that have medical marijuana laws do not address an employee’s right to consume cannabis. While there is a grey area given the lack of direct references, litigation from those who consume medical marijuana and are disciplined or terminated by the employers has been fairly consistent. 7/8/2014HRinfo4u.com 21
  22. 22. Decisions by courts in California, Washington, Oregon. Colorado and the US District Courts have supported the rights of an employer to take adverse action against a candidate or employee based on the presence of marijuana in a drug test, even if that person is permitted to use marijuana for medical reasons. 7/8/2014HRinfo4u.com 22
  23. 23. These decisions have been based on 2 primary points: ◦ Marijuana is still classified as a Schedule 1 drug by the federal government ◦ Marijuana use by employees could present safety concerns for an organization and organizations can take reasonable steps to protect themselves from these risks. 7/8/2014HRinfo4u.com 23
  24. 24. Five states have some employee protection under the law, but they vary from state to state. Connecticut states that employers can prohibit the use of marijuana during work hours and discipline employees impaired during work hours. Employers subject to DOT regulations have greater freedom to take action against an employee. 7/8/2014HRinfo4u.com 24
  25. 25. Recreational marijuana laws do not prohibit employers from taking adverse action against an applicant or employee for cannabis use. Unlike medical marijuana cases, these individuals cannot claim disability discrimination or violations of public policy to defend themselves. 7/8/2014HRinfo4u.com 25
  26. 26. Another issues is pre-employment drug testing. A difficult question is, do we need to shift from testing solely for the presence of marijuana to a test that checks for impairment? (if there was one?) 7/8/2014HRinfo4u.com 26
  27. 27. Employers also seek to address safety concerns when their workers use drugs properly but are unable to work while under their influence. More than 20% of Americans over the age of 12 state that they have uses prescription drugs in a non-medical manner. Prescription drugs, after marijuana and alcohol, are the most commonly abuse drugs. 7/8/2014HRinfo4u.com 27
  28. 28. The CDC & P classified this as an epidemic and the fastest growing drug problem in the US, with 1 death every 19 minutes. Like illegal drugs, prescription drug use can have an impact on accidents, job performance and other incidents, like theft. 7/8/2014HRinfo4u.com 28
  29. 29. Prescription medications present other challenges: ◦ Their mere presence does not constitute an offense ◦ Many of these employees are protected under the ADA ◦ Workers can claim privacy of their health information and not share details of their drug use with employers. 7/8/2014HRinfo4u.com 29
  30. 30. Employers have some latitude to inquire into, or even test for, prescription drugs used by the employee. Employees in safety sensitive position or in a post accident situation could be subject to question about prescribed medications. 7/8/2014HRinfo4u.com 30
  31. 31. Step one, fundamentals: ◦ Establish if your policy is adequate based on your particular issues ◦ Create a list of the positions to determine safety risks ◦ Clarify if your organization falls under federal regulations ◦ Construct a list of the states your organization operates in 7/8/2014HRinfo4u.com 31
  32. 32. Step two, layer in complexity ◦ Engage your counsel ◦ Work with a medical review officer to understand the drug testing process ◦ Know best practices Clear Concise Consistent Broadly communicated ◦ Establish a methodology for reviewing and updating the policy 7/8/2014HRinfo4u.com 32
  33. 33. Step three, address specific issues ◦ Determine if your organization is comfortable with exceptions to the policy ◦ Ensure the test panel comprises the right drugs ◦ Establish how you will determine “proof” ◦ Include specific language as to use, possession or influence in the workplace 7/8/2014HRinfo4u.com 33
  34. 34. 7/8/2014HRinfo4u.com 34

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