Transcript MASTER BUILDERS OF IOWA

PRIVATE EMPLOYER
DRUG & ALCOHOL TESTING:
CONSIDERATIONS IN IMPLEMENTING
AND MAINTAINING A TESTING PROGRAM
DECEMBER 20, 2013
Ann Holden Kendell
666 Grand Avenue
Suite 2000 Ruan Center
Des Moines, IA 50309
515-242-2450 direct
515-323-8550 direct fax
[email protected]
© 2013 Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.
Main Questions to Ask:
1.What triggered our interest in a testing program?
• Do most businesses in our industry do testing?
• Is our insurance carrier suggesting it?)
2.If there was a “business” reason triggering the interest, how compelling is that
business interest?
3.Is the monetary and administrative “cost” worth it?
4.Is there a monetary gain to implementing a program?
• Reduction in insurance premium?
5.Is there a history of issues with impairment at the workplace? If so, what
types – alcohol, drugs or both?
6.What substances do we want to test for – drugs, alcohol or both?
7.What type of testing do we want – pre-employment, reasonable suspicion,
post-accident, rehabilitation and/or random?
8.How will we administer the program?
• What person will oversee this program for the company?
• What entity will do our testing?
The Statistics…
The source for the following:
“Results from the 2012 National Survey on Drug Use and Health:
Summary of National Findings”
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Substance Abuse and Mental Health Services Administration
Center for Behavioral Health Statistics and Quality
The Statistics…
Employment
Current illicit drug use differed by employment status in 2012. Among adults
aged 18 or older, the rate of current illicit drug use was higher for those who
were unemployed (18.1 percent) than for those who were employed full time
(8.9 percent), employed part time (12.5 percent), or "other" (6.3 percent)
(which includes students, persons keeping house or caring for children full
time, retired or disabled persons, or other persons not in the labor force)
(Figure 2.13). The percentage of adults employed full time who were
current illicit drug users increased between 2011 (8.0 percent) and 2012
(8.9 percent).
The Statistics…
The Statistics…
Geographic Area
Among persons aged 12 or older, the rate of current illicit drug use in 2012
was 11.7 percent in the West, 9.6 percent in the Northeast, 8.6 percent in
the Midwest, and 7.7 percent in the South.
In 2012, the rate of current illicit drug use among persons aged 12 or older
was 9.9 percent in large metropolitan areas, 9.2 percent in small
metropolitan areas, and 6.8 percent in nonmetropolitan areas (Figure 2.14).
Within nonmetropolitan areas, the rate was 8.3 percent in urbanized
counties, 5.9 percent in less urbanized counties, and 4.8 percent in
completely rural counties.
The Statistics…
The Statistics…
Education
Illicit drug use in 2012 varied by the educational status of adults aged 18 or
older. The rate of current illicit drug use was lower among college graduates
(6.6 percent) than those with some college education (10.2 percent), high
school graduates who did not attend college (9.8 percent), and those who
had not graduated from high school (11.1 percent). Additionally, the 2012
rate of current illicit drug use among college graduates aged 18 or older was
higher than the 2011 rate of 5.4 percent.
The Statistics…
In 2012, 7.2 percent of youths aged 12 to 17 were current users of
marijuana, 2.8 percent were current nonmedical users of psychotherapeutic
drugs, 0.8 percent were current users of inhalants, 0.6 percent were current
users of hallucinogens, and 0.1 percent were current users of cocaine.
Among 12 or 13 year olds, 1.7 percent used psychotherapeutic drugs
nonmedically (with 1.5 percent using pain relievers nonmedically),
1.2 percent used marijuana, and 0.9 percent used inhalants.
Among 14 or 15 year olds, 6.1 percent used marijuana, 2.5 percent used
psychotherapeutic drugs nonmedically (with 2.2 percent using pain relievers
nonmedically), 0.7 percent used inhalants, and 0.5 percent used
hallucinogens.
The Statistics…
Among 16 or 17 year olds, 14.0 percent used marijuana, 4.0 percent used
psychotherapeutic drugs nonmedically (with 3.1 percent using pain relievers
nonmedically), 1.2 percent used hallucinogens, 0.7 percent used inhalants,
and 0.2 percent used cocaine. The percentage of youths aged 16 or 17 in
2012 who were current users of cocaine was lower than in 2011
(0.5 percent).
In 2012, the rate of current illicit drug use was higher among young adults
aged 18 to 25 (21.3 percent) than among youths aged 12 to 17
(9.5 percent) and adults aged 26 or older (7.0 percent). Among young
adults aged 18 to 25, the 2012 rate was similar to the rates in 2009 to 2011
(ranging from 21.4 to 21.6 percent), but it was higher than the rates in 2004
to 2008 (ranging from 19.4 to 20.1 percent) and in 2002 (20.2 percent).
The Statistics…
In 2012, the rate of current illicit drug use among adults aged 26 or older
was 7.0 percent, including rates of 5.3 percent for current use of marijuana
and 2.1 percent for current nonmedical use of psychotherapeutic drugs.
Less than 1 percent of adults in this age group were current users of
cocaine (0.6 percent), hallucinogens (0.2 percent), heroin (0.1 percent), and
inhalants (0.1 percent). The 2012 rate of current illicit drug use was higher
than the rate in 2011 and in 2002 through 2009. The 2012 rate of current
marijuana use was similar to the rates in 2010 and 2011 (4.8 percent in
each year), but it was higher than the rates from 2002 through 2009.
The Statistics…
Among adults aged 50 to 64, the rate of current illicit drug use has
increased during the past decade. For adults aged 50 to 54, the rate
increased from 3.4 percent in 2002 to 7.2 percent in 2012. Among those
aged 55 to 59, the rate of current illicit drug use increased from 1.9 percent
in 2002 to 6.6 percent in 2012. Among those aged 60 to 64, the rate
increased from 1.1 percent in 2003 to 3.6 percent in 2012. These patterns
and trends partially reflect the aging into these age groups of members of
the baby boom cohort, whose rates of illicit drug use have been higher than
those of older cohorts. The baby boom cohort refers to persons born in the
United States after World War II between 1946 and 1964 (Han, Gfroerer, &
Colliver, 2009a).
The Statistics…
Alcohol
The rate of current alcohol use was 64.8 percent for full-time employed
adults aged 18 or older in 2012, which was higher than the rate for
unemployed adults (54.9 percent). The rates of binge drinking were similar
for adults who were employed full time and those who were unemployed
(29.9 and 32.0 percent, respectively).
Among adults in 2012, most binge and heavy alcohol users were employed.
Among the 57.9 million adults who were binge drinkers, 43.6 million
(75.4 percent) were employed either full or part time. Among the 16.7 million
adults who were heavy drinkers, 12.5 million (74.7 percent) were employed.
The Statistics…
The rate of past month alcohol use for people aged 12 or older in 2012 was
lowest in the South (48.3 percent), followed by the West (50.7 percent),
then the Midwest (55.4 percent), then the Northeast (57.7 percent).
In 2012, the rates of past month alcohol use among persons aged 12 or
older in large and small metropolitan areas (53.5 and 53.1 percent,
respectively) were higher than in nonmetropolitan areas (45.6 percent).
Rates of binge drinking were similar in large and small metropolitan areas
(23.4 and 22.9 percent, respectively). However, binge drinking among
persons aged 12 or older was less prevalent in nonmetropolitan areas
(21.4 percent) than in large metropolitan areas.
Among youths aged 12 to 17 in 2012, the rates of binge alcohol use in large
metropolitan and small metropolitan areas (6.9 and 6.8 percent,
respectively) were lower than the rate for youths in nonmetropolitan areas
(9.2 percent).
The Statistics…
The Statistics…
BUSINESS REASONS FOR A
TESTING PROGRAM
Addressing Questions 1 – 4:
Prevalence in an industry can be a good
measuring stick
Increase or decrease in insurance costs
Customer or contract requirement
Assessment of costs/benefits – the more
compelling the business interest, it can offset
the monetary and administrative costs of a
program
HISTORY OF ISSUES
Prior history – through accidents or other
behavioral issues – may indicate that a
testing program is a good idea
In review of the prior history – what
substances were at issue?
À LA CARTE – SELECTING THE
TESTING PROGRAM FOR YOU
Based upon responses to the previous
questions, you will have some idea as to the
types of substances that are a priority for testing.
Based upon your objectives, you will see what
types of testing is appropriate – screening
applicants, addressing impairment problems
and/or random testing to keep employees from
using drugs.
THE LEGAL REQUIREMENTS AS PART
OF THE COST/BENEFIT ANALYSIS
Iowa Code Chapter 730.5 requires the
following prior to testing:
Written policy – provided to applicants/employees
prior to testing (if a minor, to the parent or guardian by
certified mail, return receipt requested)
Supervisor training
Awareness program – EAP/resource file
If doing random testing – determination of employee
population to be tested
WRITTEN POLICY
The written policy must:
Include the types of testing done
Include the substances the testing will reveal
Advise of opportunity to provide relevant medical information to MRO
Advise of consequences for test refusal or a positive test result (uniform
disciplinary actions or rehabilitation) and that the actions taken on a positive test
result are taken based solely on the results of the test
If rehabilitation is required, the employer shall not take adverse employment
action against the employee so long as the employee complies with the
requirements of rehabilitation and successfully completes rehabilitation.
Provide information on any employee assistance program or the resource file
maintained by the company.
For alcohol testing, the employer shall establish in the written policy a standard
for alcohol concentration which shall be deemed to violate the policy. The
standard for alcohol concentration shall not be less than .04, expressed in terms
of grams of alcohol per two hundred ten liters of breath, or its equivalent.
Obtain the signature of the applicant/employee acknowledging receipt of the
policy
SUPERVISOR TRAINING
Training for supervisory personnel
involved with drug or alcohol testing:
A minimum of two hours of initial training
Annual one hour training
Training shall include: information concerning the
recognition of evidence of employee alcohol and
other drug abuse, the documentation and
corroboration of employee alcohol and other drug
abuse, and the referral of employees who abuse
alcohol or other drugs to the employee assistance
program or to the resource file maintained by the
employer
DETERMINATION OF EMPLOYEE
POPULATION TO BE TESTED
(RANDOM TESTING)
Other than employees who are not scheduled to
be at work or pursuant to a collective bargaining
agreement, the employer may designate:
The entire employee population at a particular work site.
The entire full-time active employee population at a particular
work site.
All employees at a particular work site who are in a pool of
employees in a safety-sensitive position.
Safety-sensitive - A job where an accident can cause loss of life, serious
bodily injury, significant property or environmental damage, including the
immediate supervision of such jobs.
May have more than one pool of safety-sensitive positions, but an employee
may not be in more than one pool (cannot increase “odds” of selection)
RANDOM TESTING
General Requirements:
Employer can have no control over random selection
– independent entity must be used
The independent entity must use a computer-based
random number generator using SSN’s, payroll ID
no., etc.
Cannot “random” test all employees – must have
equal chance of selection or non-selection
QUIRKS…
Pre-offer testing for drugs is permitted
Only post-offer testing for alcohol
Pre-employment testing must be done before person starts working
Pre-employment testing does not provide for a second confirmatory
test of a positive test
Pre-employment testing does not require written notice of results to
be sent via certified mail, return receipt requested (just provided
notice in writing of the results of the test, of the name and address of
the medical review officer who made the report, and of the
prospective employee’s right to request records) – current
employees receive notice of results and right to re-test at a
laboratory of employee’s choice at employee’s cost sent via certified
mail, return receipt requested
Employee’s are paid for mileage for testing and for time spent –
applicants are not
MORE QUIRKS…
Alcohol testing may require rehabilitation to be offered:
50 employees or more
Employee at issue has worked 12 of last 18 months
First positive test
Employee wants to go to rehabilitation
Payment for rehab – pursuant to any insurance covering
employee; any cost not covered split by employee/company
50/50 up to $2,000
Only samples allowed are urine, saliva & breath, but a blood test
performed by a doctor in treating an employee following a work
place accident may be used by the employer. Hair is never used.
Post-rehabilitation testing is allowed and the statute does not put
limitations on it – BUT, if employee is subjected to testing that does
not fit the situations outlined in the statute, it will be discriminatory
treatment in violation of the ADAAA for disability discrimination.
COST OF FAILURE TO COMPLY
Employer has burden to prove compliance
If 730.5 is violated, it can mean:
reinstatement or hiring, with or without back pay, or any other
equitable relief as the court deems appropriate
attorney fees and court costs
an injunction brought by an aggrieved employee or prospective
employee, the county attorney, or the attorney general
COST OF FAILURE TO COMPLY
Violation of ADAAA/ICRA for disability
discrimination
reinstatement, with or without back pay, or any other equitable
relief as the court deems appropriate
front pay
emotional distress
punitive damages
attorney fees and court costs
an injunction brought by an aggrieved employee
Thank you!
Ann Holden Kendell
666 Grand Avenue
Suite 2000 Ruan Center
Des Moines, IA 50309
515-242-2450 direct
515-323-8550 direct fax
[email protected]
© 2013 Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.