presented by William J. Judge, JD, LL.M .

1. presented by William J. Judge, JD, LL.M. What You Need to Know About Workplace Drug Testing For Iowa & Illinois Employers

2. What Rules Apply?

3. Non-Union Union Non-regulated Office Safety-sensitive Regulated

4. vs.

5. First Major Mistake “We follow DOT” The Correct Answer? “We follow the rules that apply.” Typically every workplace has numerous workgroup To which different rules apply.

6. Second Major Mistake “We treat everyone the same” The Correct Answer? “We follow the rules that apply.”

7. Third Major Mistake “We want to keep things simple” The Correct Answer? “We follow the rules that apply.”

8. The Need to Test Legal Overview Policy Specifics

9. The Need to Test

10. 74.8% of current, admitted drug users ARE EMPLOYED! Source: http://oas.samhsa.gov/nsduh/2k5nsduh/2k5Results.htm#Fig2-10

11. Source: http://www.medicalnewstoday.com/medicalnews.php?newsid=35944

12. Michael R. Frone, PhD, University of Buffalo's Research Institute on Addictions said: “"Of all psychoactive substances with the potential to impair cognitive and behavioral performance, alcohol is the most widely used and misused substance in the general population and in the workforce," Frone stated. "The misuse of alcohol by employed adults is an important social policy issue with the potential to undermine employee productivity and safety." The context of alcohol use -- off the job vs. on the job -- is important to an understanding of the productivity implications (job attendance vs. job performance and safety) of that use," he explained.

13. Who uses Drugs? illicit drug use by industry?  Construction:15.6%  Sales personnel:11.4%  Bartenders:11.2%  Laborers:10.6% Machine operators:10.5% Occupations and alcohol use?  Construction:15.7%  Machinists:13.5%  Transportation:13.1%  Repair workers:13.1%  Food/Beverage:12.2% Source: www.SAMHSA.gov/ www.lawsinhand.com

14. Drug/Alcohol Use impact at Work  38% to 50% of all workers' compensation claims are related to substance abuse in the workplace;  Substance abusers incur 300% higher medical costs than nonabusers.  Injuries on and off the job cost employers about $200 billion annually, or $1,700 per employee.  A recent study showed that the average company sampled experienced an 11.41 percent reduction in its workers’ compensation experience-rating modification factor. At the same time, companies that did not implement drug testing programs saw no decline in their workers’ compensation experience-rating modification factor. Source:http://workplace.samhsa.gov/ResourceCenter/r115.pdf

15. Numbers that matter  $20 million saved over the last 3 years (Associated Gen. Contractors of Alabama)  51% reduction in workplace injury rates within two years of implementing a drug-testing program. (http://www.news.cornell.edu/Chronicle/00/6.29.00/drug-testing.html).  19% of the those killed on the job in 1998 had drugs and/or alcohol present in postmortem tox. report. (http://www.bls.gov/opub/cwc/2001/spring/art3full.pdf)

16. “You Can’t Do That!” Iowa:You can’t! Stopped $1.5 million claim! Texas:You can’t!74% success rate.  All but 4 states have a statutory intoxication defense to a workers compensation claim.  4 state have law where positive test is presumptive denial of benefits.  12 states have work comp drug-free incentive programs.

17. Legal Overview

18. Recent Court Cases 1. Agency: Employer responsible for the acts of their agents (here the lab lost sample). (Artistic Solid Waste Systems, Inc. v. Employment Appeal Bd, (No. 1-1012/00-2018; IA App. 2002) 2. Random: Earle v. NetJets (Case No. 2:04-cv-876; SD OH 7/06/06) 3. Policy: Must include state language. Gaylord v. Wal-Mart Assoc., Inc. (WD 65939; MO App. 6/20/06) 4. Test Facility: Must follow state law. Estes v. Conoco-Phillips Company, (Case No. 05-CV-0445-CVE-PJC; 7/05/06)

19. Proper Testing Starts with Qualified Service Providers

21. AGENT Agent: “A person authorized by another (principal) to act for or in place of him; one entrusted with another’s business.” Agency: “A relationship between two persons, by agreement or otherwise, where one (the agent) may act on behalf of the other (the principal) and bind the principal by words or actions.” Balck’s Law Dictionary, abridged sixth addition. Pp40-41.

22. 49 CFR Part 40.3 “Service agent. Any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part. Service agents are not employers for purposes of this part.”

23. 49 CFR Part 40, 40.31 & 40.33: Subpart C - Urine Collection Personnel §40.31 Who may collect urine specimens for DOT drug testing? (a) Collectors meeting the requirements of this subpart are the only persons authorized to collect urine specimens for DOT drug testing. (b) A collector must meet training requirements of §40.33. (c) As the immediate supervisor of an employee being tested, you may not act as the collector when that employee is tested, unless no other collector is available and you are permitted to do so under DOT agency drug and alcohol regulations. (d) You must not act as the collector for the employee being tested if you work for a HHS-certified laboratory (e.g., as a technician or accessioner) and could link the employee with a urine specimen, drug testing result, or laboratory report.

24. §40.33 What training requirements must a collector meet? To be permitted to act as a collector in the DOT drug testing program, you must meet each of the requirements of this section: (a) Basic information. You must be knowledgeable about this part, the current "DOT Urine Specimen Collection Procedures Guidelines," and DOT agency regulations applicable to the employers for whom you perform collections, and you must keep current on any changes to these materials. The DOT Urine Specimen Collection Procedures Guidelines document is available from ODAPC (Department of Transportation, 400 7th Street, S.W., Room 10403, Washington DC, 20590, 202-366-3784, or on the ODAPC web site (http://www.dot.gov/ost/dapc). (b) Qualification training. You must receive qualification training meeting the requirements of this paragraph. Qualification training must provide instruction on the following subjects: (1) All steps necessary to complete a collection correctly and the proper completion and transmission of the CCF; (2) "Problem" collections (e.g., situations like "shy bladder" and attempts to tamper with a specimen); (3) Fatal flaws, correctable flaws, and how to correct problems in collections; and (4) The collector’s responsibility for maintaining the integrity of the collection process, ensuring the privacy of employees being tested, ensuring the security of the specimen, and avoiding conduct or statements that could be viewed as offensive or inappropriate; (c) Initial Proficiency Demonstration. Following your completion of qualification training under paragraph (b) of this section, you must demonstrate proficiency in collections under this part by completing five consecutive error-free mock collections. (1) The five mock collections must include two uneventful collection scenarios, one insufficient quantity of urine scenario, one temperature out of range scenario, and one scenario in which the employee refuses to sign the CCF and initial the specimen bottle tamper-evident seal. (2) Another person must monitor and evaluate your performance, in person or by a means that provides real-time observation and interaction between the instructor and trainee, and attest in writing that the mock collections are "error-free." This person must be a qualified collector who has demonstrated necessary knowledge, skills, and abilities by -- (i) Regularly conducting DOT drug test collections for a period of at least a year; (ii) Conducting collector training under this part for a year; or (iii) Successfully completing a "train the trainer" course.

25. QUESTION: • Because Part 40 requires collectors, MROs, BATs and STTs, and SAPs to maintain their own training records, can employers or training entities refuse to provide these service agents their training records? • ANSWER: • No. Employers and trainers who provide training for these service agents must not withhold training documentation from them when they have successfully completed the training requirements. • If a collector, BAT, STT, MRO, or SAP is not in possession of training documentation, he or she is in violation of Part 40. • Source: DOT’s party 40 Q&A,http://www.dot.gov/ost/dapc/questions/2002questions.doc

26. Employer and SA Issues State-By-State www.lawsinhand.com

27. Substance Abuse Prevention of Public Works Projects Act

28. The Iowa Perspective Iowa Perspective Iowa’s The Changing Landscape

29. Iowa Drug Testing Law Sec. 730.5 Paragraphs 1-16 Definitions: b.  "Drug" means a substance considered a controlled substance and included in schedule I, II, III, IV, or V under the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. c.  "Employee" means a person in the service of an employer in this state and includes the employer, and any chief executive officer, president, vice president, supervisor, manager, and officer of the employer who is actively involved in the day-to-day operations of the business. d.  "Employer" means a person, firm, company, corporation, labor organization, or employment agency, which has one or more full-time employees employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, in this state. "Employer" does not include the state,a political subdivision of the state, including a city, county, or school district, the United States, the United States postal service, or a Native-American tribe. f.  "Medical review officer" means a licensed physician, osteopathic physician, chiropractor, nurse practitioner, or physician assistant authorized to practice in any state of the United States, who is responsible for receiving laboratory results generated by an employer's drug or alcohol testing program, and who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with the individual's medical history and any other relevant biomedical information. g.  "Prospective employee" means a person who has made application, whether written or oral, to an employer to become an employee.

30. Sec. 730.5 continued: h.  "Reasonable suspicion drug or alcohol testing" means drug or alcohol testing based upon evidence that an employee is using or has used alcohol or other drugs in violation of the employer's written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. For purposes of this paragraph, facts and inferences may be based upon, but not limited to, any of the following: (1)  Observable phenomena while at work such as direct observation of alcohol or drug use or abuse or of the physical symptoms or manifestations of being impaired due to alcohol or other drug use. (2)  Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance. (3)  A report of alcohol or other drug use provided by a reliable and credible source. (4)  Evidence that an individual has tampered with any drug or alcohol test during the individual's employment with the current employer. (5)  Evidence that an employee has caused an accident while at work which resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under chapter 88, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed one thousand dollars. (6)  Evidence that an employee has manufactured, sold, distributed, solicited, possessed, used, or transferred drugs while working or while on the employer's premises or while operating the employer's vehicle, machinery, or equipment. i.  "Safety-sensitive position" means a job wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a job that meets the requirement of this paragraph. j.  "Sample"" means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites, which shall include only urine, saliva, breath, and blood. However, sample does not mean blood except as authorized pursuant to subsection 7, paragraph "l". [As amended 2004]

31. Sec. 730.5 continued: k.  "Unannounced drug or alcohol testing" means testing for the purposes of detecting drugs or alcohol which is conducted on a periodic basis, without advance notice of the test to employees, other than employees whose duties include responsibility for administration of the employer's drug or alcohol testing program, subject to testing prior to the day of testing, and without individualized suspicion. The selection of employees to be tested from the pool of employees subject to testing shall be done based on a neutral and objective selection process by an entity independent from the employer and shall be made by a computer-based random number generator that is matched with employees' social security numbers, payroll identification numbers, or other comparable identifying numbers in which each member of the employee population subject to testing has an equal chance of selection for initial testing, regardless of whether the employee has been selected or tested previously. The random selection process shall be conducted through a computer program that records each selection attempt by date, time, and employee number. * * * 6.  Scheduling of tests. a.  Drug or alcohol testing of employees conducted by an employer shall normally occur during, or immediately before or after, a regular work period. The time required for such testing by an employer shall be deemed work time for the purposes of compensation and benefits for employees. b.  An employer shall pay all actual costs for drug or alcohol testing of employees and prospective employees required by the employer. c.  An employer shall provide transportation or pay reasonable transportation costs to employees if drug or alcohol sample collection is conducted at a location other than the employee's normal work site.

32. Sec. 730.5 continued: 7.  Testing procedures.  All sample collection and testing for drugs or alcohol under this section shall be performed in accordance with the following conditions: a. Collection in private; if observed must be same gender b. Split sample (drug) required. Must keep split for 45 days or confirmed negative. c. Sample Collection procedures: Opportunity to disclose current med’s. Er must give donor a list of drugs to be tested. * * * e. Must use HHS-certified laboratory f. Must confirm initial test results by different method. Alcohol tests must be per US DOT rules. g. MRO must review all positive tests - - not alcohol. h. May only test for alcohol or drugs in the body. i . If MRO report to Er as positive: 1. Notice in writing to donor certified mail, return receipt requested. 2. Must notify of right to have split tested. 3. Split at certified lab of Employee’s choosing. 4. Split cost paid by Employee “which shall be consistent with the employer's cost for conducting the initial confirmatory test on an employee's sample.” 5. Employee must notify Er in person or by cert. Mail w/in 7 days of choice to test split 6. If split fails to confirm Er shall reimburse employee for the cost of the split. 7. If fails to confirm no discipline may be taken. (See Harrison v. Employment Appeal Board and Victor Plastics, Inc. IA S.Ct. 4/02/03) j. Lab shall dispose of negative samples within 5 days of reporting result. k. Lab may only report information re: test conducted per Er policy. l. Er can rely on tests conducted by medical personnel following an accident even if not requested by Er.

33. Sec. 730.5 continued: 8.  Drug or alcohol testing.  Employers may conduct drug or alcohol testing as provided in this subsection: a. Random: All, per facility, or safety-sensitive. b. During and after rehabilitation c. Reasonable Suspicion d. Prospective employee testing e. Post-accident investigation “in which the accident resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under chapter 88, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed one thousand dollars.

34. Sec. 730.5 continued: 9.  Written policy and other testing requirements. a. Written policy must be provided to every employee and available for review by every employee and prospective employee. b. Minor employees: Written copy of policy must be given to parent/guardian and a written acknowledgment signed that they received it. (Cert mail return receipt sufficient). "parent" means one biological or adoptive parent, a stepparent, or a legal guardian or custodian of the minor. “minor” is anyone under age 18. c. Policy must say that notice of positive test of any minor will be sent to parent. d. Policy shall: 1. Provide uniform requirements for discipline for positive or refusal 2. Indicate that discipline shall be based only on a confirmed positive or refusal. 3. Indicates that if rehab involved, no discipline so long as in compliance with/complete rehab. 4. Establish an awareness program re: the dangers of drug and alcohol use at work, and; a. If Er has an EAP must inform re: the benefits of the EAP, must post notice of the EAP and make employees aware of how to access the EAP. b. If Er has no EAP must maintain a resource file of facilities certified by the IA department of Pub. Health or other area providers. 5. One testing positive is NOT considered handicapped. 6. Alcohol positive not less than 0.04. 7. Er can have more than 1 random pool, but no individual can be in more than one pool. 8. If alcohol in excess of cutoff (not less than 0.04) AND Er has at least 50 employees AND donor has worked for Er at least 12 of past 18 months AND donor agrees to rehabilitation then no discipline may be imposed. 9. Costs of rehab per benefit plan or equally apportioned – Er not more than $2,000.

35. Sec. 730.5 continued: Supervisory Training 9. h.  In order to conduct drug or alcohol testing under this section, an employer shall require supervisory personnel of the employer involved with drug or alcohol testing under this section to attend a minimum of two hours of initial training and to attend, on an annual basis thereafter, a minimum of one hour of subsequent training. The training shall include, but is not limited to, information concerning 1. recognition of evidence of employee alcohol and other drug abuse, 2. documentation and corroboration of employee alcohol and other drug abuse, and 3. referral of employees who abuse alcohol or other drugs to the employee assistance program or to the resource file maintained by the employer pursuant to paragraph "c", subparagraph (2). 10.Disciplinary procedures. a.Upon receipt of a confirmed positive drug or alcohol test result which indicates a violation of the employer's written policy, or upon the refusal of an employee or prospective employee to provide a testing sample, an employer may use that test result or test refusal as a valid basis for disciplinary or rehabilitative actions pursuant to the requirements of the employer's written policy and the requirements of this section, which may include, among other actions, the following: (1)A requirement that the employee enroll in an employer-provided or approved rehabilitation, treatment, or counseling program, which may include additional drug or alcohol testing, participation in and successful completion of which may be a condition of continued employment, and the costs of which may or may not be covered by the employer's health plan or policies. (2)Suspension of the employee, with or without pay, for a designated period of time. (3)Termination of employment. (4)Refusal to hire a prospective employee. (5)Other adverse employment action in conformance with the employer's written policy and procedures, including any relevant collective bargaining agreement provisions.

36. Sec. 730.5 continued: 11.  Employer immunity. A cause of action shall not arise against an employer who has established a policy and initiated a testing program in accordance with the testing and policy safeguards provided for under this section, for any of the following: a.  Testing or taking action based on the results of a positive drug or alcohol test result, indicating the presence of drugs or alcohol, in good faith, or on the refusal of an employee or prospective employee to submit to a drug or alcohol test. b.  Failure to test for drugs or alcohol, or failure to test for a specific drug or controlled substance. c.  Failure to test for, or if tested for, failure to detect, any specific drug or other controlled substance. d.  Termination or suspension of any substance abuse prevention or testing program or policy. e.  Any action taken related to a false negative drug or alcohol test result. 12.  Employer liability -- false positive test results. a.  Except as otherwise provided in paragraph "b", a cause of action shall not arise against an employer who has established a program of drug or alcohol testing in accordance with this section, unless all of the following conditions exist: (1)  The employer's action was based on a false positive test result. (2)  The employer knew or clearly should have known that the test result was in error and ignored the correct test result because of reckless, malicious, or negligent disregard for the truth, or the willful intent to deceive or to be deceived. b.  A cause of action for defamation, libel, slander, or damage to reputation shall not arise against an employer establishing a program of drug or alcohol testing in accordance with this section unless all of the following apply: (1)  The employer discloses the test results to a person other than the employer, an authorized employee, agent, or representative of the employer, the tested employee or the tested applicant for employment, an authorized substance abuse treatment program or employee assistance program, or an authorized agent or representative of the tested employee or applicant. (2)  The test results disclosed incorrectly indicate the presence of alcohol or drugs. (3)  The employer negligently discloses the results. c.  In any cause of action based upon a false positive test result, all of the following conditions apply: (1)  The results of a drug or alcohol test conducted in compliance with this section are presumed to be valid. (2)  An employer shall not be liable for monetary damages if the employer's reliance on the false positive test result was reasonable and in good faith.

37. Sec. 730.5 continued: 13.  Confidentiality of results -- exception. a.  All communications received by an employer relevant to employee or prospective employee drug or alcohol test results, or otherwise received through the employer's drug or alcohol testing program, are confidential communications and shall not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except as otherwise provided or authorized by this section. b.  An employee, or a prospective employee, who is the subject of a drug or alcohol test conducted under this section pursuant to an employer's written policy and for whom a confirmed positive test result is reported shall, upon written request, have access to any records relating to the employee's drug or alcohol test, including records of the laboratory where the testing was conducted and any records relating to the results of any relevant certification or review by a medical review officer. However, a prospective employee shall be entitled to records under this paragraph only if the prospective employee requests the records within fifteen calendar days from the date the employer provided the prospective employee written notice of the results of a drug or alcohol test as provided in subsection 7, paragraph "i", subparagraph (2). c.  Except as provided by this section and as necessary to conduct drug or alcohol testing under this section and to file a report pursuant to subsection 16, a laboratory and a medical review officer conducting drug or alcohol testing under this section shall not use or disclose to any person any personally identifiable information regarding such testing, including the names of individuals tested, even if unaccompanied by the results of the test. d.  An employer may use and disclose information concerning the results of a drug or alcohol test conducted pursuant to this section under any of the following circumstances: (1)  In an arbitration proceeding pursuant to a collective bargaining agreement, or an administrative agency proceeding or judicial proceeding under workers' compensation laws or unemployment compensation laws or under common or statutory laws where action taken by the employer based on the test is relevant or is challenged. (2)  To any federal agency or other unit of the federal government as required under federal law, regulation or order, or in accordance with compliance requirements of a federal government contract. (3)  To any agency of this state authorized to license individuals if the employee tested is licensed by that agency and the rules of that agency require such disclosure. (4)  To a union representing the employee if such disclosure would be required by federal labor laws. (5)  To a substance abuse evaluation or treatment facility or professional for the purpose of evaluation or treatment of the employee. However, positive test results from an employer drug or alcohol testing program shall not be used as evidence in any criminal action against the employee or prospective employee tested.

38. Iowa Workers Compensation Iowa Code section 85.16 states as follows:No compensation under this chapter shall be allowed for an injury caused:(2) By the employee's intoxication, which did not arise out of the in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was asubstantial factor in causing the injury.

39. Recent Court Cases 1. Agency: Employer responsible for the acts of their agents (here the lab lost sample). (Artistic Solid Waste Systems, Inc. v. Employment Appeal Bd, (No. 1-1012/00-2018; IA App. 2002) 2. Random: Earle v. NetJets (Case No. 2:04-cv-876; SD OH 7/06/06) 3. Policy: Must include state language. Gaylord v. Wal-Mart Assoc., Inc. (WD 65939; MO App. 6/20/06) 4. Who Pays: Must follow state law. Tow v. Truck Country of Iowa, Inc. and William Roth, Iowa Sup. Ct. 2005 (695 N.W.2d 36) 5 Testing: Know the law: Doyon v . Home Depot U. S. A., Inc. 850 F.Supp.125).

40. Legislative Update – ‘05-’06

41. Policy Specifics

42. Union Issues Federal Laws Federal Rules ADA FMLA HIPPA NLRA Federal Rules ADA FMLA HIPPA NLRA Employer Drug Testing Policy Contract Issues State Laws

43. POLICY AND PROCEDURE Why do I need one? Must it be written? www.lawsinhand.com

44. Maximize the financial benefit of testing through Workers Comp and Unemployment Defense Keys to success: 1. Written testing policy 2. Signed acknowledgment from claimant 3. Present urine/alcohol test results 4. Have witnesses prepared to testify (MRO, Lab director, etc.) the first hearing may be the last www.lawsinhand.com

45. POLICY DEVELOPMENT WHO to test WHAT to test for WHERE medical office? WHEN test events HOW test methods WHY safety, mandated www.lawsinhand.com

46. Cover Page: No legal consequence; stylistic only Date? Some add a date/update here

47. Can be used to post throughout company Must be sure to give access to entire policy.

48. Written Policy Requirements ● Must have a written policy. ● Must provide policy to each employee and make available for review by each employee and prospective employee. (get acknowledgement signed) ● If employee minor (18) must provide copy to Parent. ● Must get receipt/acknowledgement of delivery to parent (cert. mail) ● Policy shall detail: 1. What discipline or rehab employer will take. 2. Must state any action ONLY based on test. 3. If rehab required (alcohol) must state no discipline so long as employee complies with requirements. 4. Must establish awareness program. 5. If have EAP, must explain benefits/services. ► MUST postnotice of EAP benefits/services. ► MUST provide info re: how to access EAP. 6. If no EAP must have resource file of certified programs. ► Must explain what’s in the file/how to access it. 7. If testing for alcohol must state cutoff (0.04). 8. Must explain alcohol rehab rule. (50/12/0 rule).

49. WHO To Test 1. Depends upon who you are.  regulated or non-regulated?  state law? 2. Do you have unions? 3. Can you test some workers and not others? www.lawsinhand.com

50. Policy Statement WHO it applies to. Style up to you. Clearly state expectation.