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Update Legal Issues In Workplace Drug Testing State Law Compliance Presented by William J. Judge, JD, LLM FightReady, LL

Update Legal Issues In Workplace Drug Testing State Law Compliance Presented by William J. Judge, JD, LLM FightReady, LLC 2013. Overview 36 years later What have we learned?. Compliance  Opportunity What do we mean? What are the RISKS of non-compliance?. MANDATORY STATES

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Update Legal Issues In Workplace Drug Testing State Law Compliance Presented by William J. Judge, JD, LLM FightReady, LL

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  1. Update Legal Issues In Workplace Drug Testing State Law Compliance Presented by William J. Judge, JD, LLM FightReady, LLC 2013

  2. Overview 36 years later What have we learned?

  3. Compliance  Opportunity What do we mean? What are the RISKS of non-compliance?

  4. MANDATORY STATES Alaska Montana California Nebraska Connecticut Nevada Hawaii New Jersey Iowa New York Kansas North Carolina Louisiana Oklahoma Maine Oregon Maryland Puerto Rico Massachusetts Rhode Island MinnesotaUtah Vermont • VOLUNTARY STATES • Alabama Mississippi • Arizona Ohio • Arkansas S. Carolina • Florida Tennessee • Georgia Virginia • Idaho W. Virginia • Kentucky Wyoming • ** Alaska ___________ San Francisco & Boulder, CO limit who can be tested.

  5. State Requirements/Limits • Some states: • limit random - require an MRO • limit discipline - require following fed rules • Define specimen - define “accident” • Prohibit “viewed” - Prohibit post-accident test • collection • - Make adulteration a crime • - Have different alcohol cutoffs

  6. Risks of non-Compliance:

  7. Legal Framework Today’s Hot Issues

  8. Medical Marijuana/Legalization • ADA Amendments • Rx Medications

  9. MEDICAL MARIJUANA LEGAL ISSUES IN THE WORKPLACE

  10. Current Legal Framework • State Action • FEDERAL LAW . . . • Medical use of marijuana remains illegal. • DOT position. • Justice Department position.

  11. Current Legal Framework State Action Currently Permitted In 18 states and Wash. DC … AK MT MA (11/06/12) AZ NV CA NJ Soon 2 more: CO NM - IL awaiting Gov. signature CT OR - NH just compromised. DE RI HI VT ME WA MI WDC

  12. Legalization – Personal Use CO WA

  13. Opiates @ Work

  14. Is there an Opiate/Pain Rx Problem? • CDC1 – “the fastest growing drug problem in America” • 3 in 4 prescription overdosed are due to Rx/opiate pain killers. • 300% increase in pain Rx overdose deaths since 1999. • 14,800 deaths attributed to opiates, more than cocaine and heroin combined. • > 475,000 emergency room visits in 2009 – double that just 6 years earlier. •  ACOEM2 - Use of opiate med’s increase “catastrophic claims” by 4x. • http://www.cdc.gov/homeandrecreationalsafety/rxbrief/ • Journal of Occupational and Environmental Medicine, August 2012.

  15. The ADAAA

  16. Drugs Permitted to test for – HHS-5(6) • -- Amphetamines • -- Cocaine • -- Marijuana • -- Opiates • -- PCP • (Ecstasy) • 2. Reporting Prescriptions

  17. Work Comp Claims Intoxication Defense an Unused Tool

  18. We MUST Change the Way We Think!

  19. The Problem: Drugs and Alcohol in the Workplace In 2010 workers compensation insurance covered more than 131 million U.S. workers at a total cost of $85 billion to employers September 2011 Society for Human Resource Management (SHRM) survey found the number of employers reporting high WC incidence rates prior to drug testing programs decreased by approximately 50% after introducing drug testing Drug testing has been found to: Reduce claims as much as 12% Reduce first aide injury reports 18% Reduce accidents 51% Reduce Experience Mod Rates as much as 11.41%

  20. 66.0% of current, admitted drug users ARE EMPLOYED!

  21. To win, you typically must show: • Intoxication • Cause

  22. 4 States have Presumption of Intoxication Alabama Arkansas Texas Virginia

  23. 14 States have BOTH Presumption of Intoxication and Cause Colorado Florida GeorgiaIllinois Kansas Louisiana Missouri Nevada N Dakota Ohio Oklahoma Tennessee Utah Virginia

  24. 4 States Provide a “Reduction” In Benefits if there’s a positive test Colorado 50% Missouri 50%* New Mexico 10% Wisconsin 15% * Under certain circumstances may also completely deny benefits

  25. Other States of Note • Alaska, New Jersey and New York assumes that the worker was NOT intoxicated.

  26. To take advantage of this opportunity you must be in compliance.

  27. POLICY

  28. What Rules Apply?

  29. Policy Development State Laws Customer Requirements Federal Rules XYZ, Inc Unions

  30. Compliance  Opportunity

  31. Bill Judge 708-334-8010 bjudge@fightreadynow.com Itasca, IL

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