Transcript Workplace Hearing Loss: A Message You Need to Hear Joseph

Drug Testing and Training
for Public Employers
IPMA-HR
April 27, 2011
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
Agenda for Today’s Training
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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
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
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)
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.”
Fourth Amendment
Considerations
• Applies only to governmental actors
• Supreme court considerations for states
• Government’s role as employer
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
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
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”
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
D.O.T. Drug Testing
Components of D.O.T. Program
• Pre-Employment
• Random (50% of those in safetysensitive)
• Post-Accident
• Reasonable Suspicion
• Return to Duty (after refusal or
positive test)
• Unannounced follow-up testing after
rehab program (up to 60 months)
D.O.T. Drug Testing
Components of D.O.T. alcohol testing program
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Random (10% testing rate)
Post-Accident
Reasonable Suspicion
Return to Duty
Unannounced Follow Up After Rehab
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
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.
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.
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.
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.
be
No.
In either the “injury” or “tow” rules, our
driver must be cited for the drug test to
ordered.
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.
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.
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.
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
Non-D.O.T. Drug Testing
Three categories of testing for non-D.O.T.
employees
1. Random/Post-Accident Testing
2. Reasonable Suspicion Testing
3. Pre-Employment Testing
Non-D.O.T. Drug Testing
Employees with diminished privacy
expectations
• Police officers
• Fire fighters
• EMS workers
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
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
Non-D.O.T. Drug Testing
Would the following positions be classified as
safety-sensitive?
• 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
• Street and road crew
– Yes (depending on
circumstances)
• Volunteer Firefighters
– Yes
Reasonable Suspicion
Reasonable suspicion testing guidelines
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Employee’s actions
Specific, objective and observed facts
Supervisor training
Mixed court interpretations
Reasonable Suspicion
Reasonable suspicion testing policy should
contain
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Observation instructions
Training guidelines for supervisors
Basis for referral (should not be on a “tip”)
Form for referral
Testing guidelines
Disciplinary guidelines
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?
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.
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
Reasonable Suspicion
Tips for success in reasonable suspicion
programs
1. Make sure all variables are analyzed (allergies, cold,
inner ear infections, physical maladies)
2. Only supervisors who have been trained to
recognize signs of drug use may determine who is
referred for testing
3. Keep human resources staff informed
4. Attempt to obtain witnesses
Reasonable Suspicion
Observations to note
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Physical Condition
Physical Appearance
Mood
Personality and Attitude
Family Life
DO NOT DIAGNOSE THE PROBLEM ON THESE
OBSERVATIONS ALONE!
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
Reasonable Suspicion
Reasonable Suspicion “Do’s”
A.
B.
C.
D.
Confiscate any contraband or evidence
Exhibit a calm, quiet and professional manner
Interview the employee in private
Have another trained supervisor witness employee
interview
E. Consult with Human Resources Dept
Reasonable Suspicion
Reasonable Suspicion “Don’ts”
A. Diagnose the problem
B. Use force
C. Violate the employee’s privacy by discussing with
other employees
D. Get side tracked onto other issues during the
interview
E. Allow employee to drive for testing or home
Suggested Drug Testing Policy
Components (Non-D.O.T.)
A. Clear as to disciplinary standards for ‘positive’ test
B. Include prescription drugs as well as nonprescription drugs in banned list
C. Offer a self-reporting program with referral for
counseling or rehabilitation
D. Provide an employee assistance program
E. ACT – you may be saving a life!
Basic Drug Testing Methods
Substance
Urine Test Detection
Hair Test Detection
Alcohol
3-5 days (via EtG) or 10-12
hours via traditional
n/a
Amphetamines (ex Meth)
1-2 days
up to 90 days
Methamphetamine
1-2 days
up to 90 days
Barbiturates (ex
phenobarbital)
2-3 days
up to 90 days
Phenobarbital
7-14 days
up to 90 days
Benzodiazepines
Therapeutic Use: 3 days
Chronic Use: 4-6 weeks
up to 90 days
Cannabis (Marijuana)
Single Use: 2-14 days
Prolonged : 25-60 days
up to 90 days
Cocaine
2-4 days
up to 90 days
Codeine
2 days
up to 90 days
Morphine
2 days
up to 90 days
Heroin
2 days
up to 90 days
LSD
2-24 hours
up to 3 days
Methadone
3 days
up to 30 days
PCP
14 days
Chronic User: up to 30 days
up to 90 days
Questions/Scenarios
Contact Information
Shelly Brotzge, CPCU, CWCC
Midwest Employers Casualty Company
(636) 449-7142
[email protected]