Drug Testing & Training for Public Employers: Compliance & Guidelines

1. Drug Testing and Training for Public Employers IPMA-HR April 27, 2011

2. Your Facilitator Shelly Brotzge, CPCU, CWCC • Midwest Employers Casualty Company • Regional Account Manager • 20 years of experience in the insurance industry with great emphasis on workers compensation

3. Agenda for Today’s Training • Reasons to drug test • Fourth amendment overview and considerations • Testing of D.O.T. Public Employees • Testing of Non-D.O.T. Public Employees • Reasonable Suspicion Testing/Training • Scanarios & Questions

4. Reasons for a Drug & Alcohol Program • Drug Free Workplace Acts • Improves safety of employees and public • To comply with federal/state/local regulations • Because it is the RIGHT thing to do

5. Fourth Amendment Considerations 1986: Only 21.5% of U.S. Companies drug tested 1986: President Ronald Reagan mandated all federal employees be drug tested 1988: Drug Free Workplace Act of 1988 (Federal Employers) 1996: Drug Free Workplace Act of 1996 (All Employers)

6. Fourth Amendment Considerations The Fourth Amendment to the Constitution of the United States “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

7. Fourth Amendment Considerations • Applies only to governmental actors • Supreme court considerations for states • Government’s role as employer

8. Fourth Amendment Considerations So, how does the 4th Amendment affect how a public employer drug tests? • The government interest served by the drug test must be so COMPELLING as to outweigh the intrusion of the employee’s privacy • Each test must pass the “balancing” test

9. Fourth Amendment Considerations • Skinner v. Railway Labor Executives’ Association • Testing of railway workers as constitutional • National Treasury Employees Union v. VonRaab • Testing of U.S. Customs workers involved in the control of illegal drugs across the border into the United States is constitutional • Chandler v. Miller • GA law requiring those seeking public office to pass drug test is unconstitutional

10. D.O.T. vs. Non-D.O.T. Drug Testing • Encourage separate written programs • D.O.T. employees are governed under other federal guidelines • Non-D.O.T. Employees are more “sensitive”

11. D.O.T. Drug Testing • Federal Omnibus Transportation Employee Testing Act of 1991 • Federal Motor Carrier Safety Administration (FMCSA) • Commercial Motor Vehicle: • Weighs more than 26,001 pounds • OR designed to transport 16+ passengers • OR transports hazardous materials

12. D.O.T. Drug Testing Components of D.O.T. Program • Pre-Employment • Random (50% of those in safety-sensitive) • Post-Accident • Reasonable Suspicion • Return to Duty (after refusal or positive test) • Unannounced follow-up testing after rehab program (up to 60 months)

13. D.O.T. Drug Testing Components of D.O.T. alcohol testing program • Random (10% testing rate) • Post-Accident • Reasonable Suspicion • Return to Duty • Unannounced Follow Up After Rehab

14. D.O.T. Drug Testing Follow F.I.T. guidelines for post-accident testing (auto accidents) • F = Fatality • ALWAYS test after a fatality • I = Injury • Test if there were injuries reported/treated at site or injured party is transported for medical treatment ONLY if driver is CITED for moving violation • T = Towed • Test if one or more vehicles were towed ONLY if driver is CITED for moving violation

15. D.O.T. Drug Testing Scenario #1 Other vehicle passenger claims back injury at the scene but is not treated at or away from the scene. Our driver is cited for “following too closely.” No vehicles were towed. No. Even though our driver was cited, there is no proof of injury because no treatment was rendered.

16. D.O.T. Drug Testing Scenario #2 Driver of the other vehicle claims injury at the scene and is taken to the hospital by E.M.S. Our driver is not cited. Other vehicle is towed from the scene. No. Even though the other driver was injured and transported for treatment AND the vehicle was towed, our driver was not cited, thus no test.

17. D.O.T. Drug Testing Scenario #3 Other vehicle is towed and our driver is cited for “improper lane change.” No injuries claimed at the scene. Yes. Both criteria have been met for the “tow” rule. Vehicle has been towed and our driver was cited.

18. D.O.T. Drug Testing Scenario #4 Other vehicle is towed, and the other driver claims injury and is taken to the hospital. Our driver is not cited. No. In either the “injury” or “tow” rules, our driver must be cited for the drug test to be ordered.

19. D.O.T. Drug Testing Scenario #5 Other driver is dead on arrival. Our driver is not cited. Both vehicles are towed. Yes. In any fatality, you must drug test the driver even if he/she is not cited.

20. D.O.T. Drug Testing Scenario #6 Other driver is cited for “failure to stop in assured clear distance.” No vehicles are towed. There are no injuries. No. There is no fatality, there are no injuries, no towing, and our driver is not cited.

21. D.O.T. Drug Testing Scenario #7 Other driver is injured and taken to the hospital. Our driver is cited for speeding. No vehicles are towed. Yes. Because there was an injury and our driver was cited, the drug test is required.

22. D.O.T. Drug Testing Miscellaneous F.I.T. rules • Alcohol test 2 hours after collision • No alcohol test if 8 hours have elapsed • Drug test ASAP • No more than 32 hours after collision

23. Non-D.O.T. Drug Testing Three categories of testing for non-D.O.T. employees • Random/Post-Accident Testing • Reasonable Suspicion Testing • Pre-Employment Testing

24. Non-D.O.T. Drug Testing Employees with diminished privacy expectations • Police officers • Fire fighters • EMS workers

25. Non-D.O.T. Drug Testing Typical safety sensitive positions • Law Enforcement Officers • Firefighters & EMTs (including 9-1-1 dispatchers) • Vehicle operators with passenger-carrying duties • Sanitation truck drivers • Employees with access to chemical weapons & components

26. Non-D.O.T. Drug Testing “No random or post-accident drug testing of public employees that do not pose an immediate threat to public safety” What makes a position safety-sensitive? • Test: How would a drug-induced failure to perform job duties threaten the public? • Momentary lapse could cause great risk of injury

27. Non-D.O.T. Drug Testing Would the following positions be classified as safety-sensitive? Street and road crew Yes (depending on circumstances) Volunteer Firefighters Yes • IT staff member • No • Mass transit bus driver • Yes • Legal secretary • No • Lifeguard • Yes (with special consideration for minors) • Counselor at juvenile detention center • Yes

28. Reasonable Suspicion Reasonable suspicion testingguidelines • Employee’s actions • Specific, objective and observed facts • Supervisor training • Mixed court interpretations

29. Reasonable Suspicion Reasonable suspicion testing policy should contain • Observation instructions • Training guidelines for supervisors • Basis for referral (should not be on a “tip”) • Form for referral • Testing guidelines • Disciplinary guidelines

30. Reasonable Suspicion An identified caller reports drug use by a police officer whom the caller stated he has known for 10 years. The police chief had previously received an anonymous tip that the officer in question had been seen at a known drug “bazaar” weeks before, but had not investigated without more evidence. He decided to test this time, and the officer failed. Officer was terminated per guidelines and filed suit against the city. Who won?

31. Reasonable Suspicion The court in this case held that the city had reasonable suspicion to suspect drug use and order the test. Drug test was constitutional, and the termination of the officer was lawful under the city’s drug testing program.

32. Reasonable Suspicion Why might a reasonable suspicion drug testing program fail? • Lack of supervisor training • Supervisors’ attitudes toward drug and alcohol use/abuse • Personal experiences with drug and alcohol abuse • Lack of understanding of various testing programs and how they are implemented

33. Reasonable Suspicion Tips for success in reasonable suspicion programs • Make sure all variables are analyzed (allergies, cold, inner ear infections, physical maladies) • Only supervisors who have been trained to recognize signs of drug use may determine who is referred for testing • Keep human resources staff informed • Attempt to obtain witnesses

34. Reasonable Suspicion Observations to note • Physical Condition • Physical Appearance • Mood • Personality and Attitude • Family Life DO NOT DIAGNOSE THE PROBLEM ON THESE OBSERVATIONS ALONE!

35. Reasonable Suspicion Steps to follow • Suspicion • Interview • Is there reasonable suspicion? • Yes: inform HR • No: take employee home • Test • Take employee home • Follow-up and documentation

36. Reasonable Suspicion Reasonable Suspicion “Do’s” • Confiscate any contraband or evidence • Exhibit a calm, quiet and professional manner • Interview the employee in private • Have another trained supervisor witness employee interview • Consult with Human Resources Dept

37. Reasonable Suspicion Reasonable Suspicion “Don’ts” • Diagnose the problem • Use force • Violate the employee’s privacy by discussing with other employees • Get side tracked onto other issues during the interview • Allow employee to drive for testing or home

38. Suggested Drug Testing Policy Components (Non-D.O.T.) Clear as to disciplinary standards for ‘positive’ test Include prescription drugs as well as non-prescription drugs in banned list Offer a self-reporting program with referral for counseling or rehabilitation Provide an employee assistance program ACT – you may be saving a life!

39. Basic Drug Testing Methods

40. Questions/Scenarios

41. Contact Information Shelly Brotzge, CPCU, CWCC Midwest Employers Casualty Company (636) 449-7142 sbrotzge@mwecc.com