Supervisor Drug Awareness and Reasonable Suspicion Training Class

Supervisor Drug Awareness and Reasonable Suspicion Training Class Puiggari & Associates Consulting Services, PLLC Fall 2013

Objectives of Training • Regulations on Drug and Alcohol Testing • Supervisor’s Role and Responsibilities • Costs of Drug and Alcohol Abuse • Types of Testing-When and How • Reasonable Suspicion - process At the end of the training Supervisors should understand:

At the end of the training, Supervisors should know how to: • Identify and investigate crisis situations • Recognize workplace problems that may be related to alcohol and other drugs • Intervene in problem situations • Refer employees who have problems with alcohol and other drugs • Protect employee confidentiality • Continue to supervise employees who have been referred to assistance • Avoid enabling and supervisor traps

TRAINING –WHY? • DOT MANDATED* • Any employer that has employees with CDL is governed by DOT regulations • DOT regulations require CDL employees be subject to all forms of drug testing • These are 1) application 2) random 3) reasonable suspicion 4) accident and 5) return to work • DOT regulations require all new supervisors have 2 hours of drug and alcohol awareness training. • Supervisors must certify they received this training. These certifications should be kept by your HR department and by you. • DOT audit compliance • Reasonable Suspicion Testing requires Supervisor with training independently ascertain there are signs requiring reasonable suspicion testing. Second supervisor with training must concur • Drug and Alcohol use and abuse costs Businesses A lot of Money

Cost of Drug Abuse INCREASED COSTS IS THE BOTTOM LINE • Loss of Productivity and efficiency • $100B per year • Higher absenteeism, illness, tardiness, injuries • Frequent turnover, increased training expense • Lost productivity, reduced quality • Higher accidents / errors on the job • Increased health costs • Reduced sales • Lost customer confidence All the of above amounts to higher costs or lower revenues

USA • Major Market Place • 75% elicit drugs consumed in USA originate abroad

Training Sections:Outline • General Requirement of Most Policies: Ins and Outs • Follow DOT regulations • Facts Regarding Drug and Alcohol Abuse • How to Recognize Symptoms • Actions to take Once Problem is Recognized

The Drug and Alcohol Policies: • If you are going to test there must be a policy (employees must be given notice) • Protect the health and safety of all employees, customers and the public • Comply with the Drug-Free Workplace Act of 1988 or any other applicable laws • Send a clear message that use of alcohol and drugs in the workplace is prohibited • Encourages employees who have problems with alcohol and other drugs to voluntarily seek help

MT LAW • If test • Policy must be at least as stringent as Federal law • Hard to administer • Expensive to administer

The Drug and Alcohol Policies Explain: • Who is covered by the policy • When the policy applies • What behavior is prohibited • That employees are required to notify supervisors of drug-related convictions • The types of drug testing • Consequences for violating the policy-failed tests • What assistance is available to employees needing help • How employee confidentiality protected

Drug and Alcohol Policies • Zero Tolerance • Failed or Refused Drug Test Requires employees be immediately removed from safety sensitive positions • Policy could state employee will be terminated because no longer able to perform job hired to do • Policy must state if employee will be offered rehabilitation program and is so who will bear cost • Failure of pre-employment test: typically employment offer is rescinded • Employees that attend and complete Rehabilitation Program can be returned to safety sensitive position upon successful completion of return to duty process—employer need not do this; follow policy

Drug and Alcohol PoliciesDescribe: • Tests • Pre-employment-Always • Random-all or some employees • Reasonable Suspicion • Accident • Return to work • Policy must be in Handbook and available to employee. • Policy must be posted or available in hardcopy at each office. • Random Pool. • You choose % of employees You choose how often tested

Seasonal Layoffs and Pool • For Employees that go on Seasonal Layoffs (or are on FMLA or extended medical leave), do we keep them in the Random Pool. • Answer: For employees that are on Seasonal Layoff (you keep their status as an employee and intend to rehire them) or for employees that are off work temporarily (ex. a medical leave) you can EITHER: 1) Keep them in the random pool; This means that you must make a good faith attempt to contact them and have them go in for testing immediately if they are chosen for a test. If they aren’t tested document why and send them for a test before they start work again. 2) Remove them from the pool. BUT if you remove them from the pool then under the FMCSA regulations you must retest them (like they are a new employee applicant) BEFORE they start work requiring a CDL. This can be costly. • The choice is yours.

Drug and Alcohol Policies • Alcohol Abuse • Use of Alcohol at work at any time is prohibited • Point of Impairment • Employee Confidentiality • Testing information is kept confidential. Only those with a need to know are informed of failed test or fact the employee is even sent for a test. • Government agencies can be told. Ex. Unemployment office if this is the reason for termination • Illegal drug use prohibited • Illegal drugs: You know what they are also • use of someone else’s prescription. Do not take another person’s “lortab” etc. • Overdosage of prescribed medication • Resources • There are a variety of resources available to employees that need assistance. • EAP’s • State Rehabilitation Programs • AA etc.

Drug and Alcohol Policies • When the employee is given the paperwork they must go to the testing facility within 30 minutes • It is supervisors responsibility to ensure timing. DO NOT LET EMPLOYEE GO NEXT DAY OR LATER THAT AFTERNOON. This allows employee to hydrate and thus have diluted result (which is not a failure) • If Test Positive • Employee contacted by MRO (medical review officer) • MRO explores reasons for positive result. • If legal explanation, test result changed to negative • If positive result stands Employer is notified • Employee notified and terminated • Employee has right, at own cost, to have split sample tested • From same urine, sent to different lab • Terminated Employee (not pre-employment test) • Right to attend Rehabilitation • Assigned to SAP (Substance Abuse Councilor) who designs program and is employee’s contact • If SAP certifies successful completion of rehabilitation program, employee eligible rehire and eligible for hire any other DOT regulated employer. Failed test /failure refusal • Employee must pay for rehabilitation program • Employee will be tested at least 6 times next 12 months and must pay for follow up testing

Requests for Prior Drug/Alcohol Testing Results • 49 CFR Part 40.25 requires that potential employers check on the previous 2 years of drug and alcohol testing background of new hires and other employees beginning safety sensitive work. Employers need the written consent of the applicant/employee to obtain these records. To assist the employer the Department of Transportation has provided a form. • Form is at http://www.dot.gov/odapc/documents/EmployerGuidelinesOctober012010.pdf pg. 57 • If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, you must obtain and review the information as soon as possible. However, you must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions, unless you have obtained or made and documented a good faith effort to obtain this information.

Requests for Prior Drug/Alcohol Testing Results • If you obtain information that the employee has violated a DOT agency drug and alcohol regulation, you must not use the employee to perform safety-sensitive functions unless you also obtain information that the employee has subsequently complied with the return-to-duty requirements of Subpart O of this part and DOT agency drug and alcohol regulations. • As the previous employer, you must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided. • If you are an employer from whom information is requested under paragraph (b) of this section, you must, after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry. Failure to provide the information could result in an $11K fine by the FMSCA

Requests for Prior Drug/Alcohol Testing Results • As the employer requesting the information required under this section, you must maintain a written, confidential record of the information you obtain or of the good faith efforts you made to obtain the information. You must retain this information for three years from the date of the employee's first performance of safety-sensitive duties for you. • As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section).

Results of Failed Test • Terminate or Not: • DOT does not mandate termination or other employment action • However, Employee that fails test must immediately be removed from Safety sensitive position (any driving requiring CDL) §382.501 • In MT employee must be given due process (if government ee—to terminate, or if private employer they must follow policy. Employer policy can state will be terminated for failed drug test because ee can’t perform job hired to do. • Cannot be returned until successfully completes program designed by SAP and also then successfully passes a return to duty drug/alcohol test (Title 49 subpart O, section 40) See link at: http://www.dot.gov/odapc/NEW_DOCS/part40.html • Employer must ensure employee that returns follows additional testing requirements if SAP required those (ex. Drug test once a month for 12 months) • Employer need not offer rehab program option

Failed Test • What do we do with an employee that fails a drug/alcohol test? Answer: DO NOT TERMINATE IMMEDIATELY. However, the employee must immediately be removed from the position requiring the CDL. Under Montana law any government employee must be given process before they are terminated. It is recommended that: 1) If the person is an applicant and fails the test you do not hire them. You are not hiring them because they cannot perform the essential function of the job (an essential requirement would be that they have a CDL); 2) You have a policy (in the drug/alcohol testing policy) or termination policy that states any employee that fails a test will be given the right to respond but that if they cannot perform the essential function of the position (driving which requires a CDL) they will be terminated;

3) If an employee fails a test (refuses to take or numbers indicate drugs/alcohol in their system), the employee must immediately be removed from their position. They should then be called in, told the results, told they cannot perform their job and that you are proposing to terminate them. They should also be informed they have the right at their expense to have the split sample tested. The employee should then be asked if they have anything to say. MACO JPIA should be informed. Once this process is done the employee should then be terminated for the inability to do their job. 4) If you wish to rehire them at a later date, if they will need a CDL to do the job, the employee can only be rehired if they complete the rehabilitation (return to duty) process and they have a negative test; 5) If there is a Collective Bargaining Agreement, follow the process in it. However, no Collective Bargaining Agreement can preempt Federal Law. This means that you cannot put the person back into any position requiring a CDL if they have not gone through the rehabilitation process.

Return to Duty Process • LAW: Employers are not required to provide Substance Abuse Profssionals and treatment services to employees. • The policy must state if the employee or employer pays for the programs. • If employer does permit employee to return after failed test, employer must ensure employee passes SAP evaluation and complied with treatment program AND also employee takes return to duty drug test.

MT Law-Who can be tested • 1) 39-2-206 employee means an individual engaged in the performance, supervision or management of work in a hazardous environment, security position, position affecting public health or safety or in which driving a motor vehicle is necessary for any part of the individuals work, or a fiduciary. Also under 39-2-206(10) prospective employee is defined as an applicant and under 39-2-208 all applicants can be tested as a condition of hire. • This means that each county could test all applicants, all sheriffs etc., public nurses and all persons that are required to drive a vehicle to perform their work.

MT law • Also under 39-2-206 (7) hazardous work environment is defined as an position for which controlled substance testing is mandated by federal law, that involves operation of or work in proximity to construction equipment, industrial machinery or mining or that involve handling or proximity to flammable materials, explosives, toxic chemicals or similar substances. • This means that any one that did construction for the county could be tested. Also all weed guys, etc.

MT law 39-2-208 • MT employers can have random testing but if a contractor is not used; all salaried, managerial employees (per the definition of employee above) must be tested on a certain date, if an outside contractor is used, all managerial employees must be in the pool.

Facts About Drug and Alcohol Abuse • This information will assist you in recognizing drug abuse in workplace • In the U.S. 160 billion is spent on direct & collateral costs for drug users • Alcoholism causes 500 million lost workdays each year

What is Drug Addiction Addiction is a chronic, often relapsing brain disease that causes compulsive drug seeking and use despite harmful consequences to the individual who is addicted and to those around them. Drug addiction is a brain disease because the abuse of drugs leads to changes in the structure and function of the brain. Although it is true that for most people the initial decision to take drugs is voluntary, over time the changes in the brain caused by repeated drug abuse can affect a person’s self control and ability to make sound decisions, and at the same time send intense impulses to take drugs.

What is Drug Abuse • Abuse occurs whenever: • An illegal drug is used • A legally manufactured drug is taken beyond prescribed dosage or without a prescription • Over the counter taken to point of impairment • Alcohol used to the point of impairment or exceed the legal definition, or used in amount or at time violated company policy

Examples of Real Life Situations • Prescriptions: After called to Random test Company had to terminate employment of employee that took someone else’s prescribed pain killer • Medical Marijuana: Company had to terminate employee using pot as a prescription because they had not registered, as required by the state, for the use although they had a prescription from a physician • Company terminated employee that refused to let tester watch them urinate (urine not at correct temperature when provided to tester, inclusive or failed first test).

Drugs Most Commonly Abused in Workplace • Alcohol • Marijuana • Cocaine (crack also) • Stimulants (amphetamines and similar drugs) • Depressants (barbiturates, Quaaludes and tranquilizers such as valium) • Narcotics (heroin and painkillers) • Hallucinogens (includes PCP and LSD) • As a Supervisor—this is KEY: • the particular drug being abused is almost irrelevant. You do not need to know which drug • you should be able to recognize the changes in an employee that abuses drugs and how those changes affect their performance

Symptoms of Abuse • There are both Physical and Psychological symptoms • Recognizing symptoms may help identify employees at risk before problem gets too serious or crisis occurs • Supervisor’s approach is always based on job performance only • NEVER accuse employee of Drug or Alcohol Abuse (could create significant legal exposure) • Remember all of the symptoms listed next can have other causes such as family difficulties, medical problems and stress

Denial • One of most dangerous psychological symptoms • User denies to self and others there is a problem • User denies abuse is affecting job performance

Symptoms of Abuse • Behavioral • Impaired coordination • Slow reaction time • Restlessness • Declining attention to personal hygiene • Irritability • Excessive talking • Unsteady gait • Vomiting • Slurred Speech • Emotional • Aggression • Burnout • Anxiety • Depression • Paranoia • Denial

Symptoms of Abuse-Con’t • Job Performance • Frequent absences • Habitual lateness • Decreased productivity • Increased productivity • Increased errors • Accidents • Physical • Weight Loss • Bloodshot eyes • Nose irritation • Alcohol on breath • Sweating or chills • Needle tracks

Symptoms of Abuse-Con’t • Toxic Reactions • Can result from: • High dose • Allergic reaction • Include • Violent behavior • Heart attack • Seizures, Amnesia, Sores • Death

Post Impairment Drug Syndrome • There is evidence that symptoms can persist and be permanent even after all drug use has ceased.* • Usually results from multiple drug use over time • Symptoms include: • Inability to cope with much stress • Inability to do complex reasoning requiring assimilation of more than one or two facts • Inability to complete complex tasks • Limited attention span * Does this now create ADA issue (is person disabled and need accommodation?)

Enabling • Others contribute to abuse by making it possible or easy for abuser to continue abusing • Abuser will not stop until made to deal with issue • Enabling is part of problem NOT part of the solution • Enabling happens when: • Supervisors repeatedly let employee function below standards • Supervisor lets own fear of guilt or confrontation influence them to ignore problem • Supervisor lets personal loyalty to user stop them from taking corrective action • Supervisor lets fear of exposing organization to problem prevent them from resolving the problem • Supervisors condone or encourage social customs that involve alcohol on the job • Co-workers cover up drug and alcohol use • Co-workers accept users rationalizations • Co-workers lend money to help support drug habit

Enabling Supervisor Traps • Innocence • Anger • Pity • Tears • Sympathy • Excuses • Apology • Diversions

Company’s Legal Responsibility • Case law has held that companies that do not take reasonable action to counteract drug and alcohol abuse are failing to fulfill their legal obligations • To provide safe and secure workplace • Employers are legally responsible for actions of employees while on the job • Legal obligation to shareholders to protect assets of company

Company’s Legal Responsibility • Problems will not be made public • Conversations with an EAP professional - or other referral agent - are private and will be protected • All information related to performance issues will be maintained in his/her personnel file • Information about referral to treatment, however, will be kept separately • Information about treatment for addiction or mental illness is not a matter of public record and cannot be shared without a signed release from the employee • If an employee chooses to tell coworkers about his/her private concerns, that is his/her decisions • When an employee tells his/her supervisor something in confidence, supervisors are obligated to protect that disclosure Company has legal obligation to protect Employee Confidentiality

Supervisors’ Responsibilities • Day to day ongoing responsibility for what happens in the workplace • Play critical role in counteracting drug and alcohol abuse • Responsibility to organization, department, HR department and to the individual employee • Don’t demean or label people

Supervisors’ Responsibilities • Supervisors form the link between the employee and HR and/or support resources • Supervisors are responsible to organization to help reduce costs of abuse by ensuring compliance with the drug and alcohol policies • Supervisors are responsible to employees to respect privacy, be fair, evaluate performance regularly and help them be productive • Supervisors are responsible to department to provide safe productive work environment To Balance these responsibilities Supervisors can use a tool called Performance Management

Limits on Confidentiality • Disclosure of child abuse, elder abuse and serious threats of homicide or suicide as dictated by state law • Reporting participation in an EAP to the referring supervisor • Reporting the results of assessment and evaluation following a positive drug test • Verifying medical information to authorize release time or satisfy fitness-for-duty concerns as specified in company policy • Revealing medical information to the insurance company in order to qualify for coverage under a benefits plan • Unemployment Office

Performance Management • Focus on job related behavior and performance • Allows supervisor to balance rights of individual employees to privacy and fairness and rights of organization to safe productive work place • This is a positive and constructive approach • Assists Supervisor in recognizing and dealing with problems early • Gives Supervisor tools to increase confidence and ability to face unpleasant situations • Helps ensure actions are legally sound and defensible Can be used for all management areas—not just suspected drug and alcohol problems

Steps of Performance Management • Observe • Recognize when work behavior and performance have deteriorated to point of being unsatisfactory • Recognize early warning signs (before work performance unsatisfactory), such as significant changes in personal appearance (change of dress or hygiene), sudden personality or mood changes (extrovert becomes introvert, massive mood swings), changed relations with co-workers (never goes to lunch anymore, did not take coffee breaks but now does etc). If observe early signs let employee know you observed change, ask if there is a problem, and note reaction over time, but this not basis for confrontation • Document • Write down exactly what you observe and how performance is unsatisfactory. Make notes on any discussions you have on issue with employee • Prepare • Plan a meeting carefully; when, where, who, what etc. Know the goal you are trying to achieve • Confront • Tell employee your concerns and get a commitment to change • Do not engage in discussion of factors employee may use as excuse that are not work related • Follow Up • Monitor employee’s efforts. If no improvement occurs, take appropriate next step. These steps are the Supervisor Intervention Guidelines for Reasonable Suspicion Testing also

Employee Performance ChecklistObserve and Document • You may observe the following job related problems and potential problems when employee is abusing drugs or alcohol. This list is not exhaustive and should be used as a guide. • Remember: These symptoms can be caused by other issues • Guidelines for Observing Employee Performance • Pay attention to changes in behavior • Focus on Job Performance issue as soon as possible • Apply same standards to all employees fairly • Don’t let age, seniority, long acquaintance or sympathy deter you from honest evaluation • Do not discuss observations with other employees • Consult with someone if you need professional advice: HR, Drug administrator personnel

Employee Performance Checklist: Categories • Absenteeism or Other Attendance Issues • Changes in Personal Habits • Productivity and Other Performance Problems • Changed Relations with Co-Workers

Absenteeism or Other Attendance Issues • Multiple instances of unauthorized absences • Excessive sick days • Frequent Monday/Friday absences • Repeated absences, particularly if they follow a pattern • Excessive tardiness especially on Mondays • Frequent use of unscheduled vacation days to cover absences • Instances of leaving work early • Peculiar and increasingly improbable excuses for absences • Excessive lateness when returning from breaks, lunch etc.

Changes in Personal Habits • Changes in personal appearance • Declining attention to personal hygiene • Reporting to work in other than normal condition • Returning from lunch or dinner in a noticeable different behavior mode • Wide swings in morale or mood • Excessive use of telephone (engaging in guarded conversations) • Receiving unusual or inappropriate visitors at work • Creditors complaining to the supervisor or HR Department regarding financial concerns

Productivity and Other Performance Problems • Missed deadlines • Complaints from users of the employee’s production or work • Improbable excuses for poor job performance • Wasting materials • Alternate periods of high and low productivity • Difficulty in recalling instructions, details, deadlines, etc. • Difficulty in recalling own mistakes • Increasing difficulty in handling complex assignments • Jobs take longer to complete than necessary • Spasmodic work habits • Diminished morning performance • Accidents on the job due to carelessness • “Peculiar” accidents • Accidents off the job that affect job performance

Supervisor Drug Awareness and Reasonable Suspicion Training Class