Use and abuse

Emerging legal issues

In June, the American Civil Liberties Union sued Florida Gov. Rick Scott (R) over drug testing of state employees. ACLU filed the lawsuit in Miami federal court, claiming the law – which allows Florida to take urine and hair samples before hiring state workers – constitutes an unreasonable search and seizure.

In addition, some testing methods for certain drugs may have limitations. According to Quest Diagnostics, hair follicle tests have been shown to be less effective than urine tests in detecting prescription drug abuse in post-incident or reasonable-suspicion cases.

Hair follicle tests also may show positive results for marijuana use that occurred weeks prior. Medical marijuana use – in states where it is legal – has increasingly become an issue for employers, who must balance employee rights to use the substance with workplace safety and potential legal issues. In Michigan, a federal judge ruled that Walmart had the right to fire an employee for marijuana use even though the employee had a prescription from his physician and was using marijuana for medical purposes. (At press time, medical marijuana was legal in 15 states.)

The Des Plaines, IL-based American Society of Safety Engineers recently voiced support for pro-employer provisions of laws in states where medical marijuana is legal that allow the employer to take actions to protect workers from other workers who are impaired by marijuana.

Employee use of medical marijuana also may raise issues with the federal Drug-Free Workplace Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and other federal regulations, such as drug testing requirements mandated by the Department of Transportation.

In addition, conflicts exist between federal law and laws in states that have decriminalized medical marijuana. DEA defines marijuana as a Schedule I substance under the Controlled Substances Act. On its website, DEA states, “Schedule I drugs are classified as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.”

On July 8, DEA published a letter in the Federal Register that denied a petition to initiate proceedings to re-classify marijuana.

Michael D. Gifford is an attorney specializing in labor and employment law and privacy protection at Howard & Howard Attorneys PLLC, in Peoria, IL. Gifford said employers should know what their state law requires regarding drug-free workplace programs, and should determine whether they are subject to conflicting federal requirements and carefully fashion a policy that complies with all obligations.

Employers also should examine which employees have safety-sensitive responsibilities and will be impacted by the policy. Meanwhile, organizations should carefully train front-line supervisors to recognize drug abuse, he said.

General policies and procedures

When drafting a drug-free workplace program, Sample said safety professionals need to identify job responsibilities that may have a safety-sensitive concern. In addition, employers should avoid applying prescription drug testing policies across all employees. Drug-free workplace programs are not a one-size-fits-all plan, he said.

“As an employer they need to balance the right of the patient to be treated with these drugs with their need to have a safe and productive workplace,” Sample said. The program should be the result of discussions and a partnership involving the employer, employee and the employee’s physician. Policies also should include methods for informing employees about the risks of prescription drugs and the possible effects on performing work duties.

Employers also need to be compliant with state laws and regulations and know whether or not the company participates in any given state drug-free workplace program, Sample said. “All that can impact what the employer is allowed to do and what an employer is required to do,” he said.

Reasonable suspicion and fairness

J. Mac Allen, a principal at Superior Training Solutions Inc. who operates an office out of Nashville, TN, said a number of warning signs may help indicate that an employee is abusing a drug on the job. Before confronting an employee with reasonable suspicion, safety professionals should be trained to know what symptoms are associated with alcohol abuse and certain drugs.

If the employer has grounds for reasonable suspicion, talk to the employee directly in a private place, Allen said, stressing that employers must make sure the employee is treated fairly. Do not be an enabler, he said. “I tell professionals that they really need to ask only one question or make one statement: ‘You don’t seem to be acting like yourself this morning,’ and get them talking about their well-being and is there a particular reason [for their behavior],” said Allen, an 18-year veteran of the substance abuse testing and background information industries.

Allen said employers drafting a drug-free workplace program should cover all bases so they have something they can use in court if needed, but they also should make sure the employee is treated properly.

Delany said one of the most important things for employers is to educate their employees about all potential negative health and social effects of drug use, particularly prescription drug abuse. Among the many factors that have contributed to prescription drug abuse is a lack of communication and education between the physician and patient, he said.

Another factor that has caused prevalent abuse is drug manufacturers now have a broader spectrum of medications that can be used to control acute chronic pain. Patients stop using medications, and leftover pills are stored in the medicine cabinet. Kids, family members and friends can access the medications, Delany said.

Health experts say many people regard prescription drugs differently than illicit drugs such as heroin. Patients fail to see prescription drug use as an addictive drug, and abuse of the drug is not considered as dangerous as illicit drug use, even though the effects of prescription drug abuse can be equal to or worse than the effects of heroin.

Employers should provide employee assistance programs, which offer counseling for employees and their family members about substance abuse problems, according to Delany. When run well, he said, EAPs can be extremely helpful for both employers and employees, but he warned that measures for punishment for violating drug policies should be included. Employees also should be aware of whether their benefits will pay for treatment. Meanwhile, the safety professional needs to become well-versed in understanding different types of addiction, Delany said.