Drugs & Alcohol in the Workplace: A Legal Introduction

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2 Minnesota Safety Council Drugged Driving Summit Drugs & Alcohol in the Workplace: A Legal Introduction Presented by: Craig W. Trepanier Attorney at Law Trepanier MacGillis Battina P.A. Kathy Bray Corporate Counsel SFM Mutual Insurance Company Key Federal and Minnesota Laws Negligent Hiring, Retention, Supervision, and Entrustment Federal Drug-Free Workplace Act Protections from Discrimination for Chemically Dependent Employees Pre-Employment Inquiries Reasonable Accommodations for CD Employees Family & Medical Leave for CD Employees Medical Cannabis in the Workplace Opioids in the Workplace Minnesota Lawful Consumable Products Act DOT Drug and Alcohol Testing Non-DOT Drug and Alcohol Testing Drugs and Workers Compensation Liabilities Drug Use and Employee Confidentiality 1

3 Negligent Hiring Retention, Supervision, and Entrustment Under Minnesota law an employer may be liable for the acts committed by employees who are under the influence of drugs or alcohol Negligent Hiring Negligent Retention Negligent Supervision Negligent Entrustment Federal Drug-Free Workplace Act Affects employers who are the direct recipients of federal grants or have contracts with the federal government exceeding $100,000 Creates certain requirements for employers Publish/disseminate policy to employees prohibiting unlawful: manufacture, distribution, dispensation, possession, or use of controlled substances Establish a drug-free awareness program Make employees aware of requirement to abide by policy Require employees to report drug convictions Penalize employees receiving drug convictions Make a continuing effort to maintain a drug-free workplace 2

4 Protections from Discrimination for Chemically Dependent Employees The Americans with Disabilities Act ( ADA ) (federal law) and the Minnesota Human Rights Act ( MHRA ) (state law) prohibit discrimination by employer on the basis of disability What constitutes a disability? Chemical dependency ( CD ) or drug and alcohol addiction may be a disability Limitation on adverse employment acts by employers against CD employees No protection under ADA for current users of illegal drugs, no protection under ADA or MHRA for users unable to perform the essential functions of job or who pose threat to others Pre-Employment Inquiries According to the ADA and MHRA employers are prohibited from making certain inquiries to applicants/employees Before an offer of employment employers may not ask about disabilities or require medical examination After a conditional offer of employment medical examinations and inquiries are allowed if they: Are conducted on all applicants Don t discriminate against disability Test for job-related abilities only Following medical exam, employer may not refuse to hire applicants based on increased risk, speculation about future risk, or generalizations based on a disability 3

5 Reasonable Accommodations for CD Employees ADA and MHRA require reasonable accommodations for qualified disabled employees What is a qualified disabled employee? Employers must engage in interactive process to determine whether reasonable accommodation can be made CD as a potential disability may require reasonable accommodation in certain circumstances Family & Medical Leave for CD Employees Covered Employers: employers with 50 or more employees in a 75 mile radius working at least 20 weeks a year Covered Employees: employees who have worked at least 1,250 hours in the last 12 months and have worked for the employer for 12 months (not consecutively) FMLA allows up to 12 weeks of unpaid leave for serious health conditions (among other reasons) 4

6 Family & Medical Leave for CD Employees Rehabilitation, in-patient care, and outpatient care related to CD may constitute serious health condition Medical complications that may result from chemical and alcohol use may also constitute serious health condition Additional leave beyond 12 weeks may be required as ADA or MHRA reasonable accommodation if the condition rises to the level of disability Medical Cannabis in the Workplace Legalized for treatment of cancer, seizures, and spasms in 2015 Legalization expanded to include treatment of intractable pain in August 2016 Department of Health periodically considers expansion to other conditions; numerous petitions currently pending Intractable pain is that which cannot be removed or otherwise treated and in which no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts 5

7 Medical Cannabis in the Workplace Smoking medical cannabis is not an approved delivery method; liquid pills and vaporized delivery are While under the influence of medical cannabis, employees are restricted from operating a motor vehicle or working with transportation property (forklifts, pallet jacks, etc.) Discrimination against employees based on their use of medical cannabis is prohibited Opioids in the Workplace Opioid use is discouraged by the CDC and the U.S. Department of Health and Human Services Minnesota law, however, allows for and dictates the workers comp treatment parameters for opioids Doctors and patients under strict requirements for opioid use: Must determine that opioids are medically necessary Must determine patient has no treatment compliance issues or history of chemical dependency Must complete chemical dependency assessment Patient and doctor must enter into a contract agreeing on the goal of treatment, to comply with the treatment, to disclose the treatment plan to other health care providers, and many other requirements 6

8 Minnesota Lawful Consumable Products Act Employers in Minnesota cannot take adverse employment actions against an employee for their use or enjoyment of lawful consumable products (e.g., alcohol or tobacco) off work premises during non-working hours There are exceptions for bona-fide occupational requirements, conflicts of interest, non-compliance with treatment programs, and where job performance is adversely affected Alcohol testing is still allowed under Minnesota Drug and Alcohol Testing in the Workplace Act DOT Drug and Alcohol Testing Federal law regulates certain transportation occupations DOT regulations preempt some state laws regarding drug and alcohol testing FMCSA governs testing of Commercial Drivers Certain drugs prohibited Amphetamines Cocaine Opiates Phencyclidine Marijuana Ecstasy 6-acetylomorphine 7

9 DOT Drug and Alcohol Testing Conduct requirements No blood alcohol content above.04 No on-duty alcohol use No pre-duty alcohol use (4 hours) No alcohol use following an accident (8 hours or until postaccident test) Cannot refuse to submit to required testing Cannot use controlled substances (except if prescribed by licensed medical practitioner who advises the employee that the substance will not adversely affect the ability to safely operate a CMV) DOT Drug and Alcohol Testing Required testing by employers: Pre-Employment (drugs only) Reasonable Suspicion Post-Accident (alcohol 8 hours, drugs 32 hours) Random (25% testing rate for drugs; 10% for alcohol) Return-to-Duty Follow-Up 8

10 DOT Drug and Alcohol Testing Drug testing procedures Select collection site Federal chain of custody form Split urine specimen SAMHSA laboratory Medical Review Officer Confirmatory retest Alcohol testing procedures Select collection site Alcohol testing form Screening test (evidential breath test or alcohol screening device) No lab, MRO or confirmatory tests required DOT Drug and Alcohol Testing Consequences of positive test or conduct violation Removal from safety-sensitive functions Provide list of SAP resources SAP evaluation Compliance with SAP plan Pass a return-to-duty test Pass all follow up testing Federal law does not recognize medical cannabis as an excuse for a positive marijuana test result 9

11 Non-DOT Drug and Alcohol Testing Employer testing for drugs and alcohol is regulated by the Minnesota Drug and Alcohol Testing in the Workplace Act ( DATWA ) Policy and notice requirements Written policy required Policy must be given to those employees affected by it Policy must be posted in conspicuous place Employees must sign acknowledgement that they received a copy of the policy Testing is not required but only certain types allowed Non-DOT Drug and Alcohol Testing Job Applicant Testing Routine Physical Exam Testing Random Testing (for Professional Athletes & Safety-Sensitive Positions) Reasonable Suspicion Testing Post-Accident and Post-Injury Testing Treatment Program Testing Referred for treatment or evaluation Participating under employee benefit plan 10

12 Non-DOT Drug and Alcohol Testing Collection and laboratory requirements Laboratories must be certified Chain of custody requirements must be followed Urine, blood, and hair samples are acceptable for drug testing Blood samples are preferred for alcohol testing, urine is acceptable, breath testing is legally questionable Employers must provide employees with the results of a confirmatory drug test within three days of receipt and also provide written notification of the employee s rights Non-DOT Drug and Alcohol Testing Employee rights: Right to a test result report Right to explain the positive test including prescription for medical marijuana Right to request a confirmatory retest of the original sample at employee s or job applicant s expense after positive test Limitations on employee discharge, discipline, or discrimination Limitations on withdrawal of job offer An employer cannot discharge an employee for a first time positive drug test result unless the employer has first given the employee an opportunity to participate in a counseling or rehabilitation program and the employee either refused to participate or failed to complete the program (withdraws or fails a drug test after completion of the program) 11

13 Drugs and Workers Compensation Liabilities In Minnesota, injuries that arise out of and in the course of employment are compensable. An employee only needs to show that work activities were a substantial contributing factor. Potential fault of the employee in causing the injury is not factored Intoxication bars recovery Intoxication must be the proximate cause not just a contributory or substantial contributing cause Legal or illegal substances, same standard Drug Use and Employee Confidentiality Minnesota law requires that medical information regarding an employee must be kept in a separate medical file and treated as confidential This information is to be shared with personnel on a need to know basis, generally limited to supervisors/managers who can determine work ability, or medical personnel on staff This includes information regarding disabilities related to drug or alcohol use, drug test results, chemical assessment or counseling reports, and any other medical information related to chemical dependency or drug/alcohol addiction issues 12

14 Drug Use and Employee Confidentiality Minnesota Access to Employee Assistance Records Act Employee assistance records include assessment; assistance; counseling or referral assistance with alcohol or drug use Employee assistance provider must provide employee with copies of employee assistance records within seven working days (14 days if located outside Minnesota) at no charge Employee assistance records must be maintained separate from personnel records and must not become part of personnel file No employee assistance records, or participation in employee assistance services, may be disclosed to a third person, including the employer or its representative, without the prior written authorization of the person receiving services Questions? Thank you Craig W. Trepanier craig@trepanierlaw.com Kathy Bray kathy.bray@sfmic.com 13

15 Kathy Bray Kathy Bray is Corporate Counsel with SFM Mutual Insurance Company, providing management oversight of SFM s medical services team, and also acting as defense counsel representing SFM and its policyholders in workers compensation proceedings through Lynn, Scharfenberg & Hollick, SFM s staff counsel. She previously spent almost 16 years in private practice, representing employers in workers compensation and employment matters, including disputes that involved ADA, FMLA, and other issues related to discrimination. She is a mediator and arbitrator for the Union Construction Workers' Compensation Program (UCWCP), and a frequent speaker at continuing legal education programs and related industry meetings. Kathy lives and offices primarily in Duluth, where she is active in the community, currently acting as Board President for Animal Allies Humane Society. Craig W. Trepanier Craig W. Trepanier is the co-founder and President of Trepanier MacGillis Battina P.A., a law firm located in downtown Minneapolis, Minnesota. His practice includes labor and employment law, corporate law, and commercial litigation. Mr. Trepanier regularly advises employers, collection sites, and laboratories on drug and alcohol testing policies and procedures. He has drafted numerous DOT and Non-DOT drug and alcohol testing policies, provided compliance training to employers, counseled employers on positive drug and alcohol tests, and litigated claims under the Minnesota Drug and Alcohol Testing in the Workplace Act. Craig is a frequent speaker on labor and employment topics including drugs and alcohol in the workplace. Craig is the Chair of the Minnesota State Bar Association Labor & Employment Governing Council and a member of the Federal, Minnesota, and Hennepin County Bar Associations. 14

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