Page 70 - Occupational Health & Safety, September 2017

Drug Testing
overtime; and 7) they were never given the results of their drug tests. Aro v. Legal Re- covery Law Offices, Inc., 2015 I.E.R. Cas. (BNA) 180703, 2015 WL 1577597 (Cal. App. 4th Dist. 2015).
■ 2000: Employee was reinstated with back pay and attorney’s fees, where court concluded off-duty follow-up tests were an invasion of privacy in violation of the state Constitution. Edgerton et al. v. State Person- nel Bd., 83 Cal. App. 4th 1350 (2000)
■ 1997: Settled following summary judgment for employee (amount un- known), where company had no reason- able suspicion to require a drug test. Kra- slawsky v. Upper Deck Company, 56 Cal. App. 179 (1997)
Iowa
■ 2012: $40,000 paid by an employer for requiring an employee to take a drug test following treatment for carpal tun- nel; appellate court said soft-tissue injuries do not meet the definition of an accident under state’s mandatory drug testing law. Skipton v. S & J Tube, Inc., No. 2-573/11- 1902 2012 Iowa App. LEXIS 737 (2012).
■ 2006: Kraft’s motion for summary judgment denied after it failed to show the employee received notice as required under the mandatory state statute. Munn v. Kraft Foods Global, Inc. No. 3:05-CV-00026- CFB, 2006 U.S. Dist. LEXIS 74445 (2006).
Oklahoma
■ 2010: “But we didn’t know” was es- sentially the employer’s argument when it was found liable and the issue was sent to a jury to consider damages; the employee tested positive for phenobarbital, a Sched- ule IV drug, but under the state’s mandato- ry statute—Standards for Workplace Drug and Alcohol Testing Act (OKLA. STAT. tit. 40, §§551-565 (Testing Act), only Schedule I, II, or III drugs may be tested. Creekmore v. Pomeroy IT Solutions, Inc., 2010 U.S. Dist. LEXIS 97296; 31 I.E.R. Cas. (BNA) 435 (9- 16-2010).
■ 2009: An employer violated the notice and testing requirements of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act and was found in “willful” violation. Estes v. ConocoPhillips Co., 2009 U.S. Dist. LEXIS 4082; 28 I.E.R. Cas. (BNA) 1156 (N.D. Okla. 2009).
Remember, there are 22 states with
mandatory laws (plus Washington, D.C., for medical marijuana).
Marijuana at Work
are directly impacted by the prescription drug epidemic in this country.
It is pure foolishness to think that pre- scription drug abuse is not affecting your company. The CDC has called this “the fastest growing drug problem in America.”5 It has reported that:
■ 3 in 4 prescription overdoses are due to prescription opiate painkillers.
■ There has been a 300 percent in- crease in pain prescription overdose deaths since 1999.
■ There were 14,800 deaths attributed to opiates, more than cocaine and heroin combined.
■ There were more than 475,000 emergency room visits related to opiate overdoses in 2009, doubling the count tak- en just six years earlier.
An ACOEM study states that the use of opiate medicines increases “catastrophic claims” by four times the usual rate.6
■ 2.6 billion: The number of drugs or- dered or provided by physicians’ offices in the United States7
■ 48.7 percent: Number of individuals using at least one prescription drug in the past 30 days8
■ 21.8 percent: Number of individuals using three or more prescription drugs in the past 30 days9
■ 1 in 10 Americans suffer from chronic pain (25 million Americans per day)10
■ 55 to 85 percent of injured workers receive narcotics for chronic pain relief11
■ $560-635 billion: Cost of pain in missed work days and medical costs12
So how do you address this problem in your workplace? You may be thinking that you should expand the substances you are now testing for to include more prescrip- tion drugs. And you may think that you should definitely require your employees to report medications that they are taking. Both options have risks; the ADA and state human rights laws might limit your “ex- panded” drug testing and reporting pro- gram. The “how” is easier to explain than the “why.”
First, let’s take a quick look at some ADA basics. A complete explanation of this subject is far beyond the scope of this article. But in general, the ADA prohibits
MEDICAL MARIJUANA
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PERSONAL USE
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Washington,D.C.
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Another state law issue causing great concern is marijuana at work. Twenty- nine states have now authorized the medi- cal use of marijuana; eight have autho- rized personal use for anyone age 21 or older. There are eight states that limit em- ployer action of any individual based on that person’s “status” as an authorized medical marijuana patient (AZ, CT, DE, IL, ME, MN, PA, and RI). In eight states, employers can take action if an employee is found to be using or under the influence at work (AZ, CT, DE, IL, MN, NH, NY, and OH). But three state laws provide that a positive drug test for marijuana is not evidence of being under the influence (AZ, DE, and MN).
Twelve states specifically provide that employers need not accommodate a medi- cal marijuana patient/employee’s use at work. (AK, CO, ME, MI, MT, NH, NJ, OH, OR, PA, RI, and WA). Nevada and New York laws may require some accommoda- tion by an employer.
The Americans with Disabilities Act
State mandatory law compliance and state marijuana law issues are certainly concerns that company program managers must deal with. However, the issues associated with the Americans with Disabilities Act (ADA) may be far more problematic. The many complex issues related to the ADA