Opioids in the Workplace

1. Opioids in the Workplace James F. Devine Cipriani & Werner P.C. October 30th 2018

2. Outline • Statistics • Drug & Alcohol Policy Considerations • Drug & Alcohol Testing • ADA Considerations • Medical Marijuana

3. Do We Have a Problem? • Increasing ER Visits Involving Pharmaceuticals • Hydrocodone Most Commonly Prescribed Drug in USA • Prescription Opioid Overdoses at Epidemic Levels • Increasing Number of States with Medical and Recreational Marijuana Laws • New Drugs of Abuse (Synthetic Marijuana, Bath Salts)

4. National Survey on Drug and Health(NSDUH) 2002-2014 • 66.6% of People 12 or Older Reported in 2014 that they Drank Alcohol in the Past 12 Months • 6.4% Met Criteria for an Alcohol Use Disorder • Illicit Drug Use in the Past One Month Among People 12 or Older 8.3% in 2002 and 10.2% in 2014 • 7.1 Million People Met Criteria for an Illicit Drug Use Disorder in the Past Year • Not Considering Alcohol and Tobacco Misuse/Use, Misuse of Marijuana the Prescription Drugs are Next Most Common

5. Trends in Marijuana and Nonmedical Prescription UseNSDUH 2002-2014 • In 2014, 22.2 Million and 4.3 Million Americans Aged 12 Years or Older Used Marijuana and Nonmedical Use of Prescription Pain Relievers Respectively in the Past Month • In 2014, Estimated 2.5 Million Americans Aged 12 Years or Older Used Marijuana for the First Time within the Past 12 Months • In 2014, Mean Age of First Use was 19 Years among Persons 12 Years of Age or Older and was 15 Years among Persons Aged 12 to 17 Years • During 2002-2014, Estimated Prevalence of Marijuana Use in the Past Month, in the Past Year, and Daily or Almost Daily Increased among Persons Aged 18 Years or Older but not among those Aged 12-17 Years • Perceived Risk form Smoking Marijuana Decreased Across all Ages

6. Quest Diagnostics Drug Testing Data 2016 • Overall Positivity in Urine Drug Testing Among the combined US Workforce was 4.2% • Highest Annual Positivity Rate Since 2004 • 5% Relative Increase Over Previous Year • Positivity Rate for Cocaine Increased for Fourth Consecutive Year • Marijuana Positivity has Increased Over the Past Three Years, with CO and WA Double the National Average • Amphetamine (includes amphetamine and methamphetamine) Also Increasing • Prescription Opiate Positivity has Declined in Past Four Consecutive Years

7. Quest Diagnostics 2016

8. Quest Diagnostics 2016

9. Quest Diagnostics 2016

10. Quest Diagnostics 2016

11. Quest Diagnostics 2016

12. Quest Diagnostics 2016

13. Quest Diagnostics 2016

14. Drug and Alcohol Testing • Substance abuse is extremely costly to employers. • $100 billion is lost in productivity each year! • Costs associated with substance abuse includes lost productivity, increased absenteeism, thefts, illnesses, accidents and injuries, higher medical and workers’ compensation costs, and legal liability damages.

15. Drug and Alcohol Testing • The U.S. Chamber of Commerce has developed a profile which demonstrates that relative to other workers, a recreational drug user: • Is more apt to come to work late • Is twice as likely to ask for early dismissal or other time off • Has two and one-half times as many absences of 8 or more days • Has almost three times higher medical costs • Is five times more likely to file a workers’ compensation claim • Has four times as many job accidents.

16. Why Drug & Alcohol Testing? • Clear message: Use of drugs & alcohol in the workplace prohibited • Lack of testing allows drug users in your workforce • Word of Mouth about a Company NOT testing • Protects health and safety of employees, customers and the public • Decreased work accidents and absenteeism • Reduced liability exposure and costs • Maintain product/service quality & company integrity • Mandated by federal/state law or insurance carrier

17. Effective Drug & Alcohol PoliciesFair & Reasonable • Adapt to type of business & genuine needs. • Determine what behavior will be regulated & how: • On the job use & impairment • Off-duty behavior • Searches • Alcohol testing • Outline & define • Proper investigatory techniques • What constitutes proof of a policy violation • Consequences of refusal to test

18. Proper Investigation Techniques • Pre-test: Circumstances leading to testing must support the disciplinary action. • Provide sufficient proof of policy violation in each case. • Timing: Send employee for test immediately after situation giving rise to need for test • Delays = symptoms disappear & fairness questions arise • Post-drug Test: Employer has vested interest in being complete, timely and fair following employee’s positive drug or alcohol test. • Employer should be prepared to defend testing process.

19. Refusal to Test & Dilute Specimen • What constitutes refusal? • Failure to participate in required drug or alcohol testing by refusal or evasion is insubordination. • Independent grounds for discipline/termination. • Dilute Specimen • Occurs when employee drinks large quantities of liquid making testing ineffective. • Policy options: 1) Treat as refusal to test 2) Allow retest (MRO may require direct supervision) 3) Accept Result

20. Discipline: Reasonable & Fairly Applied • Treat similarly situated employees similarly. • An employer should not “play favorites.” • Different treatment may be justified for differences in work record or severity of violation • BUT, terminating one employee while imposing lesser discipline on another may have to be defended before government agency. • EAP can be offered, at Employer’s option • Parameters of EAP must be included in policy & used consistently.

21. Employee & Applicant Notice • Policy should give applicants & employees sufficient notice, specifically: • What behavior is prohibited • What constitutes proof of a policy violation • With regard to drug testing: • When the Employer requires drug testing; • How testing will be conducted; • Confidentiality of test results. • Employer must provide employees with written policy & implement protocols to reinforce policy provisions. • Avoid fine print • Publicize policy • Conduct regular trainings to remind employees of policy.

22. Employee Acknowledgment of Policy • Signed acknowledgment of receipt, review, and understanding of drug & alcohol policy: • minimizes the potential for employees to later claim ignorance as an excuse for non-compliance • For non-unionized employees, acknowledgement should indicate understanding that: • Employer has discretion to change policy; and • Policy does not create contract rights or alter at-will employment. • Best Practices: • Require a separate acknowledgment of drug & alcohol policies. • Enforce requirement that all employees sign acknowledgment. • Retain acknowledgment in employee file. • For any policy revisions, require new signed acknowledgment.

23. Practical Guidance &Employer Best Practices • Document Everything! • Written documentation of all steps of investigation & decision. • Sufficient to defend testing, investigation & adverse action to a government agency. • Stay consistent! • Enforce across the board • Follow through on consequences • No debate over “grey” areas

24. When to Test: Pre-Employment • Pre-Offer: Employer may test for illegal drugs. • Not economically efficient; • ADA implications as if positive test for legally prescribed medication. • Post-Offer, Pre-Employment: • Who should be tested: • Department of Transportation Mandated Testing • Non Mandated Companies • Drivers not subject to DOT requirements • Employees in safety sensitive positions • Everyone • Procedure = Short interval between testing request & test itself to ensure detection.en

25. When to Test: Post-Accident • OSHA 2016 Final Rule Commentary: “Blanket” post-accident drug testing policies deter injury reporting. • Impact: OSHA can cite if agency believes testing program deters reporting or is retaliatory. • Fines up to $12,471 ($124,712 for willful violation). • Best Practices: • Unless exempt from OSHA rules due to federal & state law, discontinue blanket post-accident testing. • Update policies accordingly • Train supervisors regarding new rules & recognizing impairment.

26. When to Test: Reasonable Suspicion • Employee’s behavior gives rise “reasonable suspicion” of impairment or abuse. • Proper training of supervisors essential. • Signs, Symptoms and Characteristics of Drug and Alcohol Abuse/Misuse • Observation, Documentation, Confrontation and Collection Procedures • Employee may not return to work until tests are returned to Employer and results are “Negative.”

27. Minimizing Risk for Reasonable Suspicion Testing • Determining reasonable suspicion: • Inherently subjective • Risk of employee claims of unfairness or discrimination • A clear internal protocol, consistently enforced, reduces risk & can include: • Requiring two supervisors to observe behavior raising suspicion. • Involving human resources to ensure consistency in how employees are treated. • Maintaining confidentiality to the fullest extent possible. • Negative test = pay employee for the time he was suspended if it was without pay. • Positive test: give employee opportunity to provide any information that management should consider before making decision.consider before making decision.

28. When to Test: Random • Random testing helps effectuate drug free workplace. • May be implemented/increased in lieu of blanket post-accident • Must be truly random • Number Generated System • Selections spread evenly throughout the year • Selected Employee(s) must immediately report for test. • Failure to report for test = refusal to test. • Safety-sensitive positions: • Random or periodic testing for all employees in safety-sensitive positions permissible, due to safety risks if working under the influence. • Avoid regular or random testing of all employees.

29. Return to Duty & Return to Work • Return to Duty: • DOT regulations: Subsequent to positive test, employee may be returned to work but must (1) have a negative test; (2) undergo follow up testing for up to 5 years, as determined by a substance abuse professional. • Employer decides whether and if to return employee to safety-sensitive position. • Employer should require return to duty testing for employees who self-identify and seek treatment. • Return to Work: • After leave of absence, Employer may require drug/alcohol tester may require drug/alcohol test.

30. Testing Facility Selection & Chain of Custody • Employer bears consequences of testing failure. • Active involvement in testing facility selection with appropriate protocols for your policy. • Ineffective chain of custody renders even the best policy useless. • Ensure that your testing facility: • Keeps an effective chain of custody policy • Uses proper chain of custody form • Is willing to testify as to the chain of custody. • Implement procedure for timely Employer notification of test results.

31. Testing Procedures • Alcohol Test • Drug Test

32. Alcohol Tests • Alcohol tests can be performed via breathalyzer, urine, or blood testing. • Preferred testing protocol is performance of a breathalyzer test. • If that test is positive, the collection of a blood sample for laboratory testing is necessary. • Only breathalyzer and blood tests have been recognized as accurate measures of alcohol impairment; urine testing is less reliable. • Some collection facilities simply collect a urine sample unless a specific request is made.

33. Drug Tests • Drug testsare typically performed on urine samples. • The initial test performed is a “screening” test, so-called because the accuracy level of the test is typically not high. • It is an inexpensive means of “screening out” negative samples that do not warrant more sophisticated, more accurate and more expensive confirmatory tests.

34. Drug Testing • Federal guidelines and some state laws require employers to have confirmatory tests performed. • These tests are performed on the same urine sample. • A portion of the sample is preserved to permit a later retest.

35. Drug Testing • The most common confirmatory test is the gaschromatography/mass spectrometry (GC/MS). • GC/MS confirmation, when performed by a qualified laboratory, is virtually 100% accurate.

36. Drug Tests • Drug tests, however, unlike alcohol tests, often do not measure impairment. • They indicate use of a drug within a period that varies from 24 hours to 30 days depending upon the drug.

37. New Technologies • Increased interest in testing has spurred the development of more accurate and less invasive testing methods. • Methods being evaluated include: • Hair analysis • Ocular response tests that evaluate eye movement and pupil reactions; and • Electronic simulators that measure hand-eye coordination, motor control, and mental alertness.

38. ADA/GINA/PHRA General Guidance • No discrimination permitted against employees due to disability or genetic information. • Pre-employment medical inquiries limited to ability to do job. • Alcoholics & Drug Addicts may be considered individuals with a disability under ADA/PHRA. • BUT, Employer may discipline or terminate employees for the current use of alcohol or illegal drugs where: • Workplace policies violated; or • Job performance impaired.

39. Drug & Alcohol Policies Under the ADA • An Employer may: • Prohibit the use of alcohol and the illegal use of drugs in the workplace; • Prohibit employees from being under the influence at work; • Hold employees using drugs or alcohol to same performance standards as other employees; • Comply with regulatory standards found in other laws. • ADA Confidentiality Requirements: • All medical information, including the results of a drug or alcohol test, must be kept confidential. • Limited exception to inform supervisors or safety personnel for disability accommodation • Must be collected & maintained securely and separately from employee’s personnel file.

40. ADA Rules For Drug & Alcohol Testing • Permissible Drug Testing: • Pre-Offer: Testing for illegal drugs only. • Test for illegal drugs is not a medical examination under ADA. • Post-Offer, Pre-employment/During Employment: Testing for both illegal & legal drugs. • Permissible Alcohol Testing: • Test to determine employee’s BAC is a medical examination under the ADA. • Must be job related & consistent with medical necessity • Reasonable suspicion of on the job drinking/intoxication.

41. Crafting an ADA-Compliant Policy • Policy should not prohibit use of OTC & prescription medication when used to treat a disability. • Use the least invasive method of testing to protect employee privacy. • Uniformly apply & enforce policies to minimize risk of discrimination and privacy claims.

42. OSHA: Post-Accident Testing in 2017 • Limit post-incident testing to situations where: • Employer had a reasonable, objective basis for drug testing employee who reported a work-related injury or illness; and • Test can accurately identify impairment caused by drug use at the time the injury or illness occurred, as opposed to drug use in recent past (presently includes only tests that measure alcohol use). • OSHA Factors for Reasonable, Objective Basis Determination: • Reasonable basis for concluding that drug use was a contributing factor. • Employer tested other involved employees , not just the reporting employee. • Hazardousness of the work being performed when the injury occurred.

43. Prohibited & Permissible Testing Procedures • OSHA Examples of Potential Employer Retaliation • Drug testing employee for reporting repetitive strain injury. • Administering a drug test in an unnecessarily punitive manner: • Escorting employees out of the work area; or • Barring employees from access to personal belongings or vehicle. • OSHA Endorsed Drug Testing • For reasons other than injury reporting. • Under a state workers’ compensation law or other state or federal law. • Pennsylvania state WC law does not require post-accident testing. • Federal laws mandating post-accident testing include DOT regulations & Drug Free Workplace Act (for certain federal contractors).

44. Compliance with National Labor Relations Act • For union Employers, substance abuse testing requirements = mandatory subject of bargaining. • Union must be given notice & opportunity to bargain for any material changes to policy. • Employer may not unilaterally change either: • Policy which has been provided in collective bargaining agreement; or • Informal policy regarding drug & alcohol testing.

45. Medical Marijuana: Legal Provisions Regarding Employment • No Discrimination: Adverse action against employee/applicant due to status as medical marijuana patient prohibited. • No Workplace Use: Employer not required to accommodate use of medical marijuana on the job. • Prohibited job duties: Employee may not, when under the influence: • Control hazardous chemicals or high voltage electricity; or • Work at heights or in confined spaces.

46. Permissible Employer Discipline • Employer may discipline employee for: • being under the influence of medical marijuana at work; OR • For working under the influence when his conduct falls below standard of care for his job. • No adverse employment action where Employer prohibits under the influence employee from performing job duties : • threatening to employee lives; or • resulting in public health/safety risk.

47. Medical Marijuana Best Practices • For DOT Employees & Federal Contractors, marijuana use prohibited. • Other Employers should: • Update EEO policy with non-discrimination language; • Develop job descriptions specifying safety-sensitive positions and duties; • Train supervisors regarding reasonable suspicion of intoxication. • ADA Implications: • Employee’s identification as medical marijuana patient should trigger interactive process. • A medical marijuana patient with valid prescription can address positive drug test with MRO. • Employer may inquire re prescription use for safety sensitive positons.

48. Any Questions?

49. James F. Devine, Esquire Lancaster Office Managing Partner Cipriani & Werner PC 45 East Orange St Lancaster, Pa 17602 (717) 390-3020 c-wlaw.com