eSignature Legitimateness for Drug Testing Consent Agreement in Mexico

How to eSign a document: eSignature legitimateness for Drug Testing Consent Agreement in Mexico

good afternoon and welcome to a essays safety webinar on reasonable suspicion I'm Michael place safety and compliance officer for Dakota supply group and the chairman of ASAS Safety Committee each month the Safety Committee publishes articles and tool box talks on a variety of safety based subjects these can be viewed and downloaded from the aasa' website at WWF also available on the aasa' site are recordings and downloads of previous webinars all of these items are available free to you in the public to view these resources look for the safety resources link on the aasa' home page which is located at wwas a net if you have any problems contact Jim Kendall at the aasa' for assistance at this time I'd like to draw your attention to ASAS supplier partners being shown on the screen they are very important to the work that we do the safety committee would like to thank them for their industry leadership and for supporting our committee and these webinars this webinar is being recorded for later viewing everyone that registered for the webinar will receive an email notifying them when and where the replay of the webinar is available attendees will also receive an email link to its location all attendees are in mute mode to submit a question during the presentation you can enter it in the chat window before you send it be sure your setting is set to send the question to our organizers and the panelists so we can see that question questions will be answered at the end of the presentation as time allows also an FAQ document with all questions and answers will be posted on the a si site along with the replay of the webinar other related documents will be posted in this location as well I would now like to turn our attention to today's event today's webinar is presented by con mez you'll carry law firm CMC is a law firm focused on labor and employment workplace safety and litigation they provide strategic guidance to a variety of individuals and institutions ranging from employment counseling to managing government regulatory investigations they are an expert on the challenges facing workplaces throughout the country today's presentation is reasonable suspicion our presenters for this webinar are Aaron geld and Dan Deacon Aaron Gallup is a partner of conman shield Kerry's Chicago office he specializes in labor and employment and OSHA litigation mr. Gill Brent's employers in all aspects of the employer employee relationship he has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country dan beacon is an associate in the Washington DC office of time you'll carry working in both the labor and employment and OSHA practice groups mr. Deacon advises and represents employers on a wide range of employment related issues including wage and hour disputes claims of discrimination and harassment compliance with Americans with Disabilities Act the Affordable Care Act and the Family Medical Leave Act a full bio of the presenters will be posted with the webinar documents on the aasa' site I'd now like to turn the presentation over to Erin and then welcome to today's event gentlemen thank you very much it's our pleasure to be here and we are excited to have this opportunity to speak to you and your members so with that we will jump right in we're going to start with a quick overview of what we're going to be covering today we're going to begin with a discussion of drug testing laws in general to give everybody lay of the land because it's rather it's rather interesting area that's different than quite a number of the other areas in which which we provide services and we'll get into that and explain why then we'll we'll dive into a closer look at reasonable suspicion testing since that's the purpose of today's webinar in the focus we'll then move on to talking about the impact of state laws particularly on marijuana legislation or marijuana laws I think if anyone's been following the issue it's it's certainly quite timely from what's going on at the federal level to the various states that are now legalizing either recreational or medicinal use of marijuana and how that interplays with the workplace laws because it certainly creates some interesting challenges that I suspect have perplexed or concerned a number of listeners and then we will get into will conclude with a discussion of OSHA's record-keeping rule which came out in 2016 and caused quite a stir with respect to what that meant for those employers that were conducting drug testing after after accidents after injuries particularly those that were doing it on and across the board basis so starting with the a couple really three overarching questions that you often are you you may often ask yourself as an employer first can we legally require current employees to take drug tests what can we do with respect to applicants because as you might might have experienced or might imagine there's there are certainly a number of differences in the laws that are out there as far as what you can do with respect to an applicant versus what you can do with respect to an employee and if we're going to do those things how can we ensure that we don't run afoul of the various laws and I alluded to this before as far as very significant differences between the drug testing laws and a various number of other employment laws so instead of a comprehensive regulatory system in this area federal law provides for specific agencies to adopt drug testing regulations for those employers that are under their jurisdiction so for example the Department of Defense requires defense contractors to set up procedures for identifying drug users including random drug testing similarly if you have a fleet of trucks or vehicles and you have drivers the Department of Transportation requires the industries that it regulates conduct random drug and alcohol testing for workers and safety-sensitive jobs as well as testing after accidents and when there is reasonable suspicion of employees substance abuse meanwhile the federal omnibus transportation employee testing Act requires tests for all operators of aircraft railroad equipment mass transportation vehicles and commotions commercial motor vehicles and when you contrast this with OSHA I think it's it's an interesting contrast because with with federal you've got your federal osha standards and then the states are obligated those that have state plans are obligated to have a system of rules and standards that are at least as as or impose the same requirements and and rules as the federal system or they have the right to go above that and you don't have a system like that here there is there is no federal baseline as far as what employers have to do or cannot do with respect to drug testing such that the states can go above above that it really is kind of an I'll get in here this term again a bit of a patchwork system of the various laws that are out there and it can be quite confusing for those employers that have operations in a variety of different states so we'll talk a little bit about the background here the drug-free workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or a grant from a federal agency so if you conduct business with the federal government that means that you may be required to enforce zero-tolerance policies regarding the use of illegal drugs in your workplace notably the drug-free workplace Act does not regulate drug use outside of work hours nor does it mandate drug testing all organizations covered by the drug-free workplace Act are required however to first publish and give a policy statement to all covered employees informing them that the unlawful manufacture distribution dispensation possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the see this is typically done through your company's employee handbook additionaly must establish a drug-free awareness program to make employees aware of a the dangers of drug abuse in the workplace be the policy of maintaining the drug-free workplace see any available drug counseling rehabilitation and Employee Assistance Programs and D the penalties that may be imposed upon employees for drug abuse violations there are also other requirements that we're not going to go into in detail now regarding notification to employees notification to the contracting agency and making an ongoing good-faith effort to maintain the drug-free workplace a contractor or grantee fails to comply with these requirements may be subject to certain penalties potentially even the loss of a contract so as far as the legal concerns since there aren't there is not this overarching system that answers all the questions or imposes all the regulations number of other factors to consider so although the state in which your Comfort company is located may allow you to engage in drug testing employees and applicants may still have legal claims based on who was tested how the test was conducted or how the results were used by the company the violation of state laws and procedures although an employer may have the legal right to engage in drug testing it must follow the state requirements so for example in in the number of states including Maryland that employee can bring a legal challenge against his or her employer if they did not if the employee did not have a legitimate business reason to test or did not provide documents that were provided following a positive test result there's always the risk of a discrimination claim so an employer who singles out certain groups of employees for drug testing by race age gender or any other characteristic that is protected by law could face a claim for discrimination and if you then dig down a level below that there are just different types of discrimination claims there's the concept of disparate impact which is a neutral policy that impacts one group differently than another verse disparate treatment where your specific setting out to treat one one group or one person differently than another so you mate you we've seen claims on the disparate impact side for example where an individual claims that the policy of testing has a disparate impact on a certain racial group or potentially a different age group if you also have the risk of an invasion of privacy claims so even an employer that is allowed to require to test for drugs could violate employee privacy in a way that it actually conducts the drug test for example employer that requires employees to disrobe or provide a urine sample in front of others could face liability for invasion of privacy and then another claim which is is I often find is somewhat forgotten or overlooked by employers that are otherwise checking all the boxes is defamation so an employee might have a valid claim for defamation if the company publicizes the employees positive test result and that doesn't obviously mean in the newspaper or on social media but just with throughout the company to people that don't have a need to know if a retest showed that the first test was a false positive or the employee appealed the first test employer could be revealed liable for revealing the results of the positive test beyond those who haven't need to know within the company since there is no comprehensive federal drug testing law for private employers this leaves the field fairly open to state regulation as I've said before and if you look at I said before this concept of a patchwork and look at the map here is a general rule testing is presumed to be lawful unless there is a specific restriction in state or federal law however the body of law on employee privacy and related issues continues to evolve and any testing program that is not explicitly authorized should be considered open the legal challenge or at least one that you want to research before you're rolling it out just to give you a flavor of the types of restrictions or the variations that are out there to cover a handful of states here just just to to kind of again go over what out there so in Arizona testing is authorized including random testing for any job-related purpose consistent with business necessity so then you have to ask yourself what is business necessity mean there are certain positions that perhaps you can demonstrate that there is a justification for testing that impose employees that hold it others that might not Arizona also requires employers that are going to be engaging and testing to have a specific policy that covers the types of testing in Connecticut testing is authorized on reasonable suspicion of substance abuse random testing is authorized for employees only in safety sensitive jobs Idaho testing is authorized including random testing but only after notice is given to the employees of the intent to have a testing program Iowa law requires that the policy must list the types of tests that you're going to be used and state that violation is grounds for misconduct or discharge in Iowa you can test when there is probable cause to suspect substance abuse and the employee hold the job in which impairment would pose a danger but you can also test during the annual employee physical Maine is one of the more restrictive states out there and while it is testing if there's probable cause for suspicion of drug abuse it has to be it's based not based solely on the occurrence of an accident meaning that the the mere fact that someone had an accident does not necessarily create positive probable cause Maine also has some very specific requirements as far as the the preparation and dissemination of the policy so if you if you have operations in Maine and you are like are planning to roll out testing you definitely would want to consult with counsel that can advise through that process in Minnesota employee testing is authorized after an accident or part of an employee assistance program when there is reasonable suspicion of abuse or after as part of an annual physical provided and I think this is interesting that the employee has two weeks advance notice Minnesota permits random test or for employees who are in safety sensitive positions as far as in testing I think this is important to know generally we find that applicant testing is subject to fewer restrictions in more states allow it across the board but but be mindful the fact that there are a number of states out there that require the or limit the testing of applicants to the point in the application process after which you have extended a conditional job offer to the employee there are also a number a number of states that have no regulation whatsoever with respect to drug testing of employees or applicants Illinois New York and Michigan all do not have any any regulation on the subject in any case so just to summarize the fact that your state may have may not have drug testing restrictions again does not give you carte blanche in terms of the decision whether and how to test for drugs again you would want to look at whether there are restrictions as far as the type of notice required the types of policies that have you have to have and what you do once the employee tests positive for drugs another consideration is presence of a union obviously and I assume that most of our listeners understand this that if you do have employees that our subjects are represented by a union and that there is a collective bargaining agreement in place that you're going to need to review the CBA but to determine if you have the ability to require or impose drug testing on the employees if not there's there's certainly going to be a duty to bargain with the Union about this policy and the failure to do so can result in an unfair labor practice charge against the company so now let's talk a little bit about reasonable suspicion testing so this is testing that is conducted after that there's reasonable cause for suspicion of use drug use or being under the influence of drugs or alcohol while at work now it's important to keep in mind that this is based on observable signs and symptoms and that secondhand reports are not sufficient basis to proceed with testing so if you have an employee who comes to a supervisor or a manager and says hey you know I saw Fred and he I think he's hide you know I think he or I think he's drunk you should test him if you're not going to bring Fred in for a drug test or send him to a test simply based on that that report from another employee and you're going to want to be mindful obviously of you would want to get as much information from the reporting employee but what are the signs or indications that that employee saw that led him or her to believe this and come forward with the report at some point if you have time you might want to try to do some digging to figure out why the individual may have come forward to report this about Fred if there is anything in the history behind relationship but again at least figure out what were the reasons this employee came forward what are the things that this employee saw or heard before coming forward and then take that information and proceed with it from there so as far as this this process it really is something that there's a there multiple aspects to a reasonable suspicion testing program this is not something that you're just going to pull off the shelf and roll out tomorrow first you're going to you would develop and disseminate a policy in addition to the specific policy that is provided to the employees generally you will want to have some sort of procedures or guidelines that the managers who are responsible for enforcing the program as well as the human need anyone in human resources or operations is going to have at hand in other words a procedures manual something that they can bake consult that may not necessarily be what is given to the employees however that only needs to be the simple policy that explains the program to the extent that you are relying on your managers to carry out the policy or either either to conduct reasonable suspicion analyses before referring the person to attest you're going to want to restrain your responsible managers whether that's done with a third-party provider or you have one person who gets the training and then trainees train the trainer training and then provides it to all your managers no there are no requirements as far as how that is done you just want to make sure that everybody is fully trained and understands their role within this program as I said before I'll get into this a little bit more observation and documentation if you've ever listened to any webinar or seminar presented by lawyers you probably heard the emphasis on documentation I you should always assume particularly with something like this where the stakes are high or somebody's job or livelihood is potentially on the line that there's a good chance that they're there going that they may pursue some sort of remedy whether it's through a state agency or through litigation and as I assume many people realize or understand that something that you you do today or tomorrow if you don't document it there's likelihood that memories will fade and that people are not going to remember what was done why was it was done or certainly even be open to challenge that it was done in the first place once you've observed and documented the individual the potential impairment then you're going to notify the subject employee of the findings at that point then you're going to confirm whether the individual consents to the testing or if they're going to refuse and that that again documenting each of those those aspects to it then there's transportation to the testing location there's the specimen collection and then notification of the results so as I said before we're going to start at the point where we're assuming that a report has been received by a supervisor or manager and you're not going to rely on the report from a third party an employee a contractor whomever once the report is received the receiving manager or supervisor should personally observe the individual and and then complete a checklist presumably our recommendation is that companies have a checklist of the different indicators of potential impairment and use that to guide them through their analysis if the individual who performs this initial observation of the the employee concludes that they're there does indeed appear to be reasonable suspicion at that point the best practice is to involve a second supervisor or manager and have that person then observe and document the the subject employee to confirm that they to see the same things it's it's very it's the same thing as I think in a determination meeting when you always you want to have a witness to people are always going to be better than one when they are both in agreement and can both report the same things i assuming the two supervisors or managers are in agreement that they there is a potential violation they should notify Human Resources as I said before if there is a union involved here just as if you're going to want to notify the union steward or the business agent whoever is on site as to the findings in is it when I say in this the last bullet point stay together obviously that's not necessarily always and entirely possible but during these interactions both with the Union if there is one as well as with the employee you want to be together as much as possible so there always is a witness who can talk about what was what happened what was said particularly if the employee makes an admission or asks a question about his or her rights or the procedures and then answer is given you want to make sure that there is somebody there who can attest to what what either what was heard or what was said to the employer by the employee once the employee is is notified or in the process of notifying the employee of the possible violation you want to share with the employee what was observed and explained specifically why you've reached the conclusion that the employee that there is reasonable suspicion and then ask the employee for an explanation the I always tell employers that even if you're absolutely convinced the guy reeks of marijuana or he smells of bourbon or whatever whatever it is you never know what the explanation is I recall once filling my car up on the way to the airport and and with the rental car and gas spilled out of the tank and it got in my clothes and I was thinking what happens if TSA asks me why do I smell like gasoline I think I had a pretty good explanation maybe they would have expected that one but there are times where employers are you may have no no idea or never in a million years would you guess what the explanation is and they may have won more often than not they're not going to have one and when they don't that's when you let them know that their explanation is not sufficient and that you're going to proceed with testing and at that point you then ask the individual to consent to the test assuming that they do you give them a consent form and you ask them to sign the consent form now if in the event that the employee refuses to sign a consent form you don't want to just proceed to stop the process and and call it a day and then proceed with the next step in terms of consequences for refusal I would end that you asked a second time and that in doing so that you confirm what the consequences are for refusing reminding the employee whatever your policy provides if soomin refusal is results in suspension pending termination then make sure the employee understands that and and have the if possible if they acknowledge that yes I understand that and put all put all that make sure you document that in your notes as well at this point since the individual is presumably refusing to consent to the tests and go to the testing location that means that that they you can't let them return to work now that you've made the determination that they are impaired so that means they need to go home and at that point you want to instruct the individual to make arrangements so that they can travel home safely this is not a house party where you're going to take there to forcefully take their keys away so you if they say no I'm fine I'm going to drive I would sternly suggest to them know that you know we do not want you to drive we believe that you're impaired and and if they refuse again and say that no they are going home at that point if you have assuming you if you have information about their their car or their vehicle it would be a recommendation to contact the local authorities and indicate that an employee whom you to believe to be impaired has has left the premises in his or her own vehicle if I would also recommend that you notify human resources or any other entities that would would in your organization need to know about this so whether that's risk or legal let everybody know what what has happened that you you have an employee who appears to be impaired was taken taking their car or their truck to head home assuming on instead that the employee has agreed to to proceed with the test and the forms have been filled out send the forms ahead to the testing location and at that point again just as hopefully the two two managers or supervisors have been together at this point that they will jointly transport the individual to the collection site remain at the collection site during testing with while the employees is undergoing the testing there may be times where questions come up regarding medical impediments to testing or any other conduct that may be deemed or viewed to be as a refusal and if that's the case then you would want to have both managers or supervisors there to address those issues once again I don't need to repeat this but the same rules once the testing is completed you you want to remind or instruct the individual to make arrangements to home to travel safely home and again if they refuse to go through that same process so with that I'm going to turn it over to Dan to cover the next couple sections great thanks Erin this is Stan Deakin now and I'm going to begin here with another pretty big legal topic when it comes to drug testing and drug use and that is the Americans with Disabilities Act and this is an area of the law that does have some interplay with drug use and drug testing issues so we wanted to give you an overview of how the a DEA and drug use drug testing interface and some best practices to avoid a DEA discrimination claims so first drug testing is allowed under the a da that's because the a da does not consider drug abuse a disability however disability discrimination is by far the most significant legal risk when deciding whether to engage in drug testing so the a da provides that a person using illegal drugs is not a qualified individual with a disability under the Act and thus are not protected in addition testing for illegal drug use is not considered a medical exam so the a DA does not restrict when an employer can test for the use of illegal drugs remember federal law doesn't require prohibit drug testing but employers with 15 or more employees are required under the a da to have at least a conditional job offer on the table first before requiring that applicant to submit to a pre-employment drug screen finally I also want to point out that although illegal use of drugs is not covered under the a da alcoholism is considered a disability so if you do encounter a person that has alcoholism it's important to tread carefully when making employment decisions related to that employee especially if they've informed you is that they have dollars so as I mentioned before disability discrimination is by far one of the most significant legal risks when deciding whether to engage in drug testing if an employee is fired or an applicant is denied a position because of a positive drug test and his or her medication was legally prescribed for disability the employer could be liable so some prescribe medications turn up on drug tests and some drugs that would otherwise be illegal such as opiates are legitimately prescribed for certain conditions so that goes back to what Aaron was saying just a few minutes ago that some employee may have a legitimate explanation for for a positive test and this is one of those scenarios therefore you shouldn't just assume that because an employee didn't pass a drug screen that they're abusing illegal drugs or that it's grounds for termination or some other employment it's critical here to keep in mind that the ad a reasonable accommodation obligation applies at application hiring in during employment some employers are required to make a reasonable accommodation to allow individuals with disabilities to apply and be considered for jobs so long as that accommodation does not cause undue hardship and that includes accommodations in connection with pre-employment drug testing processes so keep in mind it's common for plaintiffs attorneys to launch these copycat litigations and file these claims after the EEOC filed lawsuits over particular employment issues and we're going to cover a couple of those in some of the following slides here but as a result of this the cases that have come up recently we kind of expect to see an uptick in private litigation if employers don't utilize some flexible hiring procedures or don't otherwise have a DA compliant hiring practices and the cases that will we'll highlight here kind of emphasize that and in some of the cases involving marijuana use especially you'll see you know a myriad of different decisions and state laws vary on how how those apply so it'll be interesting to discuss those shortly so here we're going to start with two recent lawsuits that highlight a DEA concern surrounding drug tests so the first one here is involved Kmart in this case highlights the potential needs to make an accommodation for drug testing so in this case the the employer came out here revoked an offer and because the employee or the applicant couldn't provide a urine sample for drug testing and the applicant actually had a kidney disease and was undergoing dialysis and he expressed a willingness to take a different type of drug test he just couldn't take the urine test so he proposed a hair or blood test Kmart denied that request and insisted that all new hires needed to complete that standard urine drug test that was provided at its facility so the EEOC filed a claim against Kmart arguing that it's drug testing policy ran afoul of the ATA we didn't get a decision from a court on that case because it ultimately shuttled for $102,000 but Kmart also agreed to revise its alcohol and drug-free workplace policy and it's pre-employment drug testing policy and that included a description of its obligation to provide a reasonable accommodation to employees or applicants in this testing process another notable case involves Walmart and the facts are actually quite similar so Walmart had offered an applicant a sales job and required her to take a pre-employment drug test in the application there the applicant said that she had end stage renal cancer which prevented her from again taking a urine test and plaintiff or the the applicant allegedly requested another type of test similar to the K Mart case but she was told that corporate wouldn't allow that alternative test as a result and the EEOC ended up suing Walmart for a violation of the ADEA and again this case ultimately settled so we didn't get a decision and in Walmart agreed to provide 90 minutes of manager training on the accommodation process and to post notice to all store employees and they also agreed to provide notice to applicants of alternative specimen testing so these are just two examples of cases highlighting the reasonable accommodation process as it relates to drug testing and the importance that you have some flexibility in in those processes or you could end up in court or facing a lawsuit by the EEOC or a private litigant again as I mentioned private litigants tend to take up a lot of these claims after the EEOC EEOC brings this type of litigation so now we're going to cover some of the marijuana laws and how employers need to carefully navigate the myriad of laws across the states that may apply to them especially large employers of course that operate in multiple jurisdictions so to begin when you step back one here so marijuana is considered a schedule 1 controlled substance under federal law and that's the Controlled Substances Act so under federal law marijuana is still illegal and as you are all probably aware by this point marijuana is not illegal under several state laws owns a majority to some extent for for medical purposes so 29 states in the District of Columbia have legalized marijuana use at least for certain medical condition and then there's nine states and the District of Columbia that have legalized marijuana for recreational use so no doctor's letter or prescription card required those are typically for adults over the age of 21 and and there's currently I believe three other states that have bills pending and proposals to legalize marijuana and that is West Virginia Ohio in Texas over the next few slides here I want to talk about a couple cases where the court where the courts found disability discrimination under state law despite marijuana being considered illegal under federal law and the first case here comes out of Rhode Island and that was Callahan vers Darlington fabrics corporation so they're the Rhode Island chapter the ACLU the American Civil Liberties Union they filed a lawsuit on behalf of the plaintiff back in 2014 alleging that her rights were violated through unlawful discrimination so she was a grad student in Rhode Island and and she had a prescription for medical marijuana and that was to treat her her migraines it appeared that she was going to have this internship until during the meeting she disclosed that she used medical marijuana to treat her condition she also said during that interview that she wouldn't bring drugs with her into work or show up ever after having taken the drug after having useth used the marijuana and so a few days went by and the company contacted her and told her that she wouldn't she wouldn't be getting the internship she wasn't offered it and that was because of her status as a medical marijuana patient so background on the lawn Rhode Island Rhode Island's medical marijuana law has specific anti-discrimination provisions and under that law employers can't refuse to employ or penalize and one solely for their status as a medical marijuana card holder so this is a different theory than violation of lawful off-duty conduct laws or disability discrimination or the a DA this suit was pretty much the first to invoke the anti-discrimination provisions of a marijuana law so it was unique in that it presented a court with an opportunity to address head-on the anti-discrimination provisions of the state statute and what happened here was the court held that the Act created an implied private right of action in large part because without such an implied private right the law's prohibition on refusing to employ and a person solely because their their status as a marijuana card holder and a prescription card it would be rendered meaningless so the court agreed that employers aren't required to tolerate employees who report to work under the influences of marijuana [Music] it held that the act expressly states and an employer can't refuse to employ a person due to his or her status as a cardholder so the court ruled that the employer violated the state statute and refusing to hire her even though she admittedly couldn't pass that pre-employment drug test other states and have anti-discrimination provisions as well it's not just Rhode Island and those states include for example Arizona Delaware Connecticut Illinois Maine and Minnesota so employers with operations in those states need to be wary of this case and those anti-discrimination provisions explicitly laid out in the state statute the second case here comes out of Massachusetts and this is also a pretty interesting one and it's Barbuto burrs advantage sales and marketing their Medical Marijuana was being used at home to treat Crohn's disease and the employee was fired from a marketing position after failing a drug test and then he claimed disability discrimination in violation of the state law and then Massachusetts Supreme Court reversed dismissal and rejected the companies the employers claim and the use of illegal drugs made accommodations facially facially unreasonable under state law so the company could prove undue hardship by showing the use of marijuana by an employee would violate the employers contractual or statutory obligation and thereby jeopardize its ability to conduct its business so what happened here was the court held that the plaintiff was disabled and basically rejected the employers claim that her use of marijuana an illegal drug under federal law rendered the accommodation facially unreasonable under the state law so in doing so the court relied on language in that state statute prohibiting the denial of any right or privilege the basis of medical marijuana use and the court further explained that we're handicapped employing the medication to alleviate or manage the medical condition that renders her handicapped and the employer fires her because company policy prohibits the use of this medication the law does not ignore the fact that the policy resulted in a person being denied employment because of that handicap so going on to recreational marijuana and this is an area of the law that is you know causing some concern for employers and raising a lot of questions and as you can see there's nine states and the District of Columbia so tender addictions that have legalized marijuana for individuals 21 and over and and the purpose here is they're decriminalizing marijuana for recreational use with restrictions that are basically similar to alcohol so life laws concerning alcohol they fail to create specific employee rights or clarify employer obligations so the area of law here doesn't really touch on employment law and it's it's kind of a gray area and it's so new most states haven't really had an opportunity for judicial interpretation it hasn't really come through the courts yet so what that means is that there's little if any guidance about what the statutes mean much less a clear distinction for employers that are trying to grapple with how their policies and practices should be modified and take into account these new statutes and I should add compounding that confusion is still the federal law which makes marijuana illegal so one of the big overarching questions for employers that we often receive is whether an employer can lawfully impose discipline including termination on an employee who test positive for marijuana and you know as you see on the slide is what some people think is is that it's the classic lawyer answer but it depends on that largely depends on a state in which you are located with that being said however the answer is generally yes employers can discipline and terminate an employee who who test positive for marijuana so most states allow employers to prohibit the use of marijuana on the employers premises as well as any on-the-job intoxication so going back to what Aaron was talking about at the beginning of the presentation with with the reasonable suspicion inquiry if you have reasonable suspicion that someone is high at work or intoxicated and you have that first-hand account of it you should certainly have reasonable suspicion and grounds for correct customs or scenarios and there's some case law of supporting in the employers right to terminate when an employee test positive so that is pretty well documented in the court you so another you know one of the big questions is can an employer discipline an employee for off hours and off-site use or influence of marijuana so and that's too simple a Tier one when it's pursuant to a valid prescription so those are in medical marijuana States and then the second piece here is what about off hours and off-site recreational use those and recreational States so remember in some states like Arizona Delaware Minnesota I think the case that we discuss Rhode Island the statutes expressly prohibit employers from terminating an employee for a positive marijuana drug test if that employee holds a valid marijuana prescription card in contrast some other states like Colorado California Montana Washington some of the states on the west coast Oregon existing statute or case law in those jurisdictions direct that employers can lawfully implement zero tolerance policies regardless of the legality of marijuana under state law with that being said as as marijuana laws continue to evolve and expand these laws could be reconsidered especially with the uncertainty and the growth of recreational use and more states passing marijuana laws and with respect to the second question about off hours and and off-site recreational use what is normally considered what duty conduct right it really just depends but generally these laws don't protect employees from being fired due to off-duty marijuana use so in fact many of the laws expressly state that they don't affect an employer's right to continue to employ enforce those zero-tolerance policies the one state I got which is pretty interesting and worth pointing out here is is Maine so for example in Maine workers no longer actually have the right to worry about getting in trouble at work for smoking marijuana in their off time employers can't discriminate against employees for using medical marijuana or marijuana byproducts outside and after new laws went to into effect and I think it was within the past year and and the State Labor Department Maine's Labor Department has removed marijuana from its list of substances that employers can test applicants for so individuals who use marijuana during work hours and at the workplace however can still be disciplined by their employer and it just is is related to those applicants you can't be testing applicants for marijuana use in Maine so despite the example I just went through there in Maine this case right here codes first Dish Network and many of you have likely heard of this case out of the Colorado Supreme Court this provides the majority approach regarding off-duty use of marijuana and how that interplays with zero zero tolerance policies so there the employee was a paralyzed a paraplegic she was in a car accident when he was a teenager and he had a license medical marijuana card at the time he was working at a DISH Network's call center and the company required him to take a drug test which he of course failed and he was then terminated because dish had a zero tolerance policy so he brought coats brought an action for wrongful termination under Colorado's lawful activities law which basically prohibits employers from firing employees for engaging in illegal activities will not at work coach the plaintiff here he claimed that his position was not hazardous he wasn't in an executive position that required decision-making and perhaps most importantly he was never under the influence of marijuana during time touring company premises this his use of the medical marijuana was strictly at home and it was never as I mentioned brought into the workplace and he never used it during or before work he also claimed that dish knew of his status as a medical marijuana patient when he was hired and and that made their their claims of a zero-tolerance workplace invalid so dish on the other hand asserted that it was entitled to enforce that zero tolerance policy and in any event even though marijuana was permissible under state law it was it couldn't be considered lawful off-duty conduct due to its status as a controlled substance under federal law and the Colorado Supreme Court and ultimately upheld the decision of the trial court for the employer and found that its termination decision was lawful so this is an example of those zero-tolerance policies and being upheld in court despite state law permitting employees to use marijuana for medical purposes so this slide goes over a couple practical aspects aspects to consider and here's three questions a lot of times that employers are asking themselves given the rise of medical marijuana laws and the recreational use laws so first will is zero-tolerance policy on marijuana reduce my pool of qualified candidates to an acceptable level two will failing to test for marijuana increased workplace injuries or fmt ISM 3 will treating marijuana differently than other illegal drugs create problems in my workforce so initially well zero tolerance policy on marijuana may reduce the level of qualified candidates especially considering fifteen percent or so of Americans do smoke marijuana ing to certain studies and that's quite a you know large number that's a large share of the population here and so perhaps you do lose out on some of the candidate pool that would be qualified and they could be good employees and given you know those concerns a lot of employers are softening their zero-tolerance drug policies particularly for jobs where safety isn't an essential function and these state laws allowing marijuana use they're kind of complicating recruiters efforts to find a drug-free employees and low in unemployment and increasing use of drugs are certainly narrowing the pool of qualified workers in a lot of regions especially those states that have had medical marijuana laws and recreational use laws on their books for quite some time so before relaxing your zero tolerance policies you know it's certainly a big step and it's it's something you need to get buy-in from company leadership make sure that they support that movement and really needs an arrow what type of policy that that you want and how to deal with the consequences arising out of that policy so next we're going to go into OSHA's anti retaliation elements of its electronic injury and helmets record-keeping rule and in particular how those affect post incident drug testing so as background and you know just high-level overview of the rule on May 12 2016 it should published the final rule and there were two major provisions there's the reporting element and also the anti retaliation piece as it relates to the reporting on establishments with 250 or more workers annually need to submit their OSHA 300 log 301 incident reports and 300 a annual summaries and establishments with 20 or more workers and high hazard industries were required to in relation to met 300 ANU Allah summaries that July 1st reporting deadline for 2018 is coming up and all establishments regardless of your employee count are only required to submit 300 a as summaries that reporting requirement alone is certainly more detailed and there's plenty of information I could take up an entire webinar itself but we'll leave a will leave the reporting piece like that so on to the anti retaliation piece ocean included a couple anti-retaliation provisions both directly in the regulations and in the preamble to the rule which we're going to focus on here so as of December 1st 2016 employers are required to one inform employees of their rights report workplace injuries to inform employees of their right to report work-related injuries free from discrimination or retaliation and three update internal injury reporting policies to remove unreasonable elements and how does this affect drug test start testing laws well that was included in the preamble to the final rule there's pretty lengthy discussion in the preamble and the post incident drug testing was was largely limited and it explicitly prohibited blanket post-injury drug testing policies in other words you can't just test an employee following an incident or injury unless you have reasonable suspicions that drugs caused or may have contributed to the injury or incident so OSHA's justification for these new rules was a drug testing could dissuade reasonable employees from reporting work-related injuries because of invasion from invasion of privacy issues but you know the overarching concern with post-injury drug testing being a form of discipline so post-injury drug testing blanket post injury drug testing policies are prohibited but that did not the rule itself did not touch on other forms of drug testing and here's just you know a list of five five permissible drug tests under the rule that are still perfectly about a pre-employment drug testing random drug testing to comply with state or federal law such as Department of Transportation Mandor mandatory post incident tests when it's required by a workers compensation insurer and then finally the standard that came out of the rule likely when drug but be contributed to the injury and where the test and identify present impairment so given that a post injury or post intamin drug test needs to be based on this specialized inquiry these are a couple of the other types of drug tests that you can perhaps supplement and continue to roll out in your policies especially random drug testing with that I'm going to turn it back over to Aaron and he's going to continue on with some of the OSHA goals thanks Dan and I think a little bit of background helps to illustrate or let everyone understand where OSHA is coming from with this this rule because it is a luda - at the beginning it's definitely created quite a bit of I guess consternation and upset on the employer side for years now every year when I attend the American Bar Association occupational safety and health meeting every spring there historically have been representatives from the Union side who have a take a very dim view of the success of a post-accident drug testing and as Dan said they truly believe it or at least they say that they believe that it is done is a way to intimidate and and to I guess is Dan said discipline employees and one of the leading voices on the side was representative change to win which is a coalition of various labor unions that popped up about twelve thirteen years ago as an alternative to the afl-cio and I suspect both both in public and private that they lobbied the federal government and pushed for this rule in and so understanding where where it's coming from as far as these these unions know that a number of their members are using drugs whether it's it's the medical marijuana or the recreational marijuana that Dan talked about or or opiates or or other things and they've been particularly concerned that people are going that the companies are using the threat of a drug test to to punish these individuals for whether it's their perspective for unions what-have-you so but so the point of the process is when you're looking at rolling out testing or conducting post-accident testing how do you do it in a way that the can just can meet the requirements of the OSHA OSHA rules the Dan's talked about one thing is you can use it as a tool to evaluate the root causes of workplace injuries which is relatively benign reason it's not being used for discipline it's being used to help make the workplace a little bit more safe if you are going to use it for disciplinary purposes for potentially to terminate an individual the expectation from from OSHA is that it is done in a way to determine if drugs could have contributed to the accident or in the injury that took place here so what criteria first aspect is whether the employer had a reasonable basis to conclude the drug use could have contributed to the injury the next is whether other employees involved in the incident or accident were also tested I think that's a fairly fairly average obvious one hopefully if several individuals were operating a piece of equipment and only one individual is tested you need to have some explanation or justification for only testing one person and not the other obviously if one person was working appropriately at their workstation and they were hit by a fork truck that was careening out of control because someone was driving recklessly you could you could justify or explain why you didn't test the person who was hit but you tested the person who was operating the power industrial truck number three is whether there's their heightened interest in identifying drug use because you are operating that you existed or operate a high hazard field and third whether the drug test is capable of measuring impairment at the time of the injury now that obviously really only applies to alcohol tests because at least is the time of this webinar there really hasn't been any sort of testing that has been developed or designed that can test impairment as far as marijuana or most other drug illegal drugs now moving on slide ok so now I think the examples that OSHA gave as part of when this rule was rolled out to illustrate when testing would be appropriate verse not appropriate I think I think we're interesting so this one example crane accident injures several employees working nearby but not the crane operator you don't know the cause of the accident but perhaps it was caused by the crane operator making an error the spotter rigger so reasonable to test all employees who conduct could have contributed to the accident whether or not they were injured you're only testing the injured employees you're going to have a problem testing employees if reasonable possibility exists the drug use caused the accident can provide again as I said before insight into the potential root cause but it would not be reasonable to test only the injured employee another example that OSHA gave which I found to be a little bit little bit troublesome or potentially a little short-sighted was well an employee is stung by a bee and so you wouldn't you wouldn't test an employee who is stung by a bee if you do that's perhaps retaliatory because he or she reported the injury but I think there are scenarios even something as simple as that if the perhaps of the employee is taking the trash out as part of his or her job and stung by a bee in the trashcan yeah I don't think you would test that employee however if the employee is a maintenance worker and is cleaning out an area or doing some sort of maintenance and the investigation suggests that there's a giant hornets nest hanging there that anybody who was not stoned out of their mind would have seen I think you might be able to justify testing that employees so it really what it really boils down to hopefully is you can kind of see from the different examples is is you should be conducting a case-by-case analysis of each situation and to determine whether or not the use of illegal drugs or alcohol could have contributed to it I I tend to maybe fall bit on the more aggressive side and if there's any potential way that the drug Gras fall use could have contributed to it then I would say go ahead and test and maybe reserve not testing only for the most very clear cases that it could not have caused contributed to the accident at the end of the day as long as you have that process of going through that debt analysis I think you're going to be in fairly good shape if the agency were to look into your testing practices I would also say though that if you're testing people who report repetitive stress or strain injuries that obviously or certainly I even I would struggle to come up with an explanation as to why how we think the drug testing could have caused a repent of stress or strain injury those are the ones that are going to be particularly problematic or troubling so if for those of you that are safety nerds like us who follow the the status of the this record-keeping rule on a daily or weekly basis you may or may not know where where the law is in the process the the OSHA is actively pursuing violations but only where there has been an aggrieved employee and we're not aware of any citations being issued yet when industry challenged this law towards the end of the Obama administration the Department of Labor filed a motion to dismiss that challenge but that has after the inauguration that challenge was or the Department of Labor I should say withdrew the motion and the case was stayed pending the issuance of a new notice of proposed rulemaking and that that rule has now been sent the revised rule has been sent to the Office of Management budget sent about I think about three weeks ago and generally it takes usually it takes about 90 days to go through the process once the proposed rule reaches OMB so I think we should expect to see the revised rule at some point during the summer what we're expecting to see and as Dan said you could cover a whole program on the reporting piece of this in fact we have go to our little shameless plug our website we've done webinars on this in the past if you really want to dig deeply into the subject one of the interesting things that caused a bit of controversy as well as what would happen to all the data the reports that are uploaded to to the agency would that data be available to the public would it be searchable downloadable exportable you know could people use it for their own purposes whatever that is in terms of PR or or competition under the prior administration it looked like that those many of the answers to those questions would be asked that it would the in a searchable searchable format we don't know what's going to happen I suspect it will be much more of would be I guess called the data dump and that people would have to sort through it but we're not really quite sure there is a lawsuit that was filed by Public Citizen challenging the lack of access to this data right now the agency is stating that they intend to keep it private for four years so anything that is submitted the the record-keeping data that is submitted will will remain private for the for four years and most interestingly I think many of the us that have been observing and following this issue expected that the the aspect dealing with drug testing as well as with the incentive compensation plans that might be tied to safety safety behaviors or safety records probably go back six eight months ago we all assume that those those would be removed from the the revised rule and there would be not no reference or no nothing in the rule addressing these aspects of employer procedures but looking at they're listening to remarks that Secretary of Labor acosta has made signal signal and at least in some sectors that that the drug testing part may remain in there it wouldn't surprise me to see it out but I think it's quite possible that it will remain in also for those of you that have been following the comings and goings that at OSHA you you would know that there is no system Secretary of Labor yet in place there has been someone nominated and it's got mug no who's the former VP of Safety from FedEx Ground he has cleared the first committee in the Senate but has yet to come to a vote on the Senate floor full confirmation so we we don't know obviously if mr. mug know is in place we might have a better sense of how the agency is going to enforce this rule going forward but we don't so with that Mike I don't know if we have any questions or time for it but that is it for our presentation Thank You Aaron and thank you Dan I've got just a few questions for those that have let's say on I have three questions here and I'll leave it to you Aaron or Dan to answer them the first question I have here is if I need to send someone in for reasonable suspicion test do I need someone of the same gender to drive that person to the testing facility and follow-up to that is what if that is in patan I mean I can I can handle that one dan feel free to jump it I don't I don't any for the driving part I don't see gender being particularly you know particularly relevant or important if and I think particularly it's going to be it could be difficult to always have if we're going to have two supervisors driving making sure both of them presumably any interaction with the employee being tested that is you know sensitive or private should should be done by the testing facility and and that they will have individuals of the appropriate gender available thank you for that second question is what if the person or persons trained in reasonable suspicion at our facility are not available when a potential substance abuse problem is brought to management's attention how should we respond I'll chime in on this one here Erin so I I think what you want to do is make sure that all managers and supervisory staff do have training on reasonable suspicion and if an incident does occur and think that it would be immediately reported to someone HRR safety and health and they would be able to stick making that inquiry if someone from management or supervisor is not present at the site and so there should be at all times someone that's available to make that that determination based on the facts that are provided from people that are there alright hey guys just wanted to point out I did just post somebody's question in the chat box if you could make sure you see that one please okay Mike did you have I think you said you had three questions before we get to the last one yeah the last question I had here was if I find drugs or alcohol in the facility but do not know who they belong to how do I go about addressing that situation with my workforce so you know I think that this is a good sonars the scenario is is one where you would look to and and hopefully rule because we're consider rolling out some random drug testing assuming that you are in a state that allows it obviously again we I talked during the beginning of the program that there are a host of states that prohibit random testing or limit random testing to safety-sensitive positions but even if you're in that the latter state you can you could certainly at least then test the folks that are in random or in safety-sensitive positions I think that would have some something of a deterrent effect in keeping people on their toes you know and aside from the testing angle I think a good old-fashioned workplace investigation depending on where the drugs were found you know what shift they were found on the traffic through that area do you have video any surveillance video that might show who went into the area you know and it could could lead you know perhaps you start with some interviews you have to be going to be mindful I think of the impact of how disruptive what a major investigation be how much how many what quantity of drugs was found you know have you had any accidents lately their whole host of factors that you might look into to determine you know what sort of resources need to be deployed to address an issue like that but certainly I think you want to do you want to do something you want to again to send send the message to employees that that's not tolerated but also just in terms of potential negligence claims or you know just your workers comp carrier deny deny acclaim down the road some for some reason because they think that you willfully ignored the drug rampant drug use I don't think that's likely but something to consider I appreciate your answers and the final question we have here is do I understand correctly that for a company with an office in Delaware an employee who is for example in an administration role where they sit in the office the majority of the time who holds a medical marijuana card cannot be fired for testing positive and then a follow up to that is what about an employee at the same company who drives and holds a USDOT car sure so the Delaware law prevents employers from discriminating against an employee and hiring termination or any term or condition of employment or otherwise penalizing that person for their status as a medical marijuana card holder or because of a positive drug test for for marijuana so the law itself though does qualify those protections in two ways so first if the statute the statute exempts employers from compliance if it would lose monetary or licensing related benefits so for someone that has a d-o-t card that could be an example right there if it's for compliance with federal law that in qualification there yeah and and and keep in mind also that certainly the the d-o-t angle that the federal law will will trump the state law in that case and so if you you if you have employees that are subject performing work subject to the do T regs then you would you would be adhering to and following whatever the d-o-t requires you to do with respect to their you know their drug test results their their driving records etc so you would not the the Delaware law will not override or Trump federal the federal do TRX right and that second qualification is letters can still terminate an employee if they show up to work high or they bring drugs onto the premises so if it's the employe