Ms. Pohlid

Hospitality Law

Developing a Drug Free Workplace Policy

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

Statistically, whether or not you know it, your establishment may be among the many workplaces affected by substance abuse. Consider that 70% of an estimated 14.8 million Americans who use illegal drugs are employed, according to the National on Alcoholism and Drug Dependence, Inc. This would approximate ten percent of the approximately 149 million persons who were employed the U.S. as of October 2015, and twelve percent of those 122 million persons employed full time, according to the Bureau of Labor Statistics. Developing a drug abuse policy is an important step in protecting your establishment, employees and guests against the costs of substance abuse.

There are several resources available for developing a drug free workplace policy. In addition to resources provided by state agencies, non-profits and businesses, the U.S. Department of Labor ("DOL") provides a Drug Free Workplace Advisor via its website at: www.webapps.dol.gov/elaws/drugfree.htm. DOL guidance advises that an employer's drug free workplace policy should seek to achieve two goals: 1) to clearly communicate that use of alcohol and drugs in the workplace is prohibited; and 2) to encourage employees who have a drug or alcohol substance abuse problem to voluntary seek help.

Mandatory Drug Free Workplace Policies

In some instances, employers may be required under state or federal law to establish a drug free workplace. Establishments should consult with legal counsel as to whether such local, state or federal laws may apply. The federal Drug Free Workplace Act of 1988 requires federal contractors for goods or services of $100,000 or more, and all federal grantees, to establish a drug free workplace. Additionally, individuals who receive a contract or grant must agree not to engage in the unlawful manufacture, distribution, possession or use of a controlled substance in the performance of their federal contract.

Components of a Written Drug Free Workplace Policy

An effective policy begins with a written statement by the employer setting forth the reasons for developing its drug free workplace policy. Employers should explain to employees the benefits they derive from a workplace that is free from the dangers and risks of drug use. The policy should address employer expectations of employees and specify drug use which is prohibited. This would include addressing the consequences of failing to submit to a drug test and violation of the drug free workplace policies including disciplinary action and termination.

Employers should ensure that employees and supervisors are trained in the drug free workplace policy. This training should include identifying signs of potential instances of substance abuse and actions that employees and supervisors are to take when they encounter such instances. It is important that employers consult with counsel in developing a drug free workplace as state laws differ as to substances that can be tested (alcohol, illegal drugs, nicotine, etc.) and the circumstances under which tests may be done.

Employee Assistance Programs

Employers who seek certification as a drug free workplace under state law may be required to provide information, resources, and/or employee assistance programs on substance abuse counseling to employees. Under California law, employers who have 25 or more employees may be required to accommodate employees who wish to participate in such programs unless the employer can establish it would pose a hardship to do so.

Benefits of a Drug Free Workplace Policy

Many states have drug free workplace statutes which encourage employers to develop drug free workplace policies and to test for drug use. Employers who qualify are entitled to benefits, which may include a premium credit on their workers' compensation insurance policy, and a shift in the burden of proof in workers' compensation claims which involve a positive alcohol or drug test. Additionally, in cases where an employee was terminated or an applicant was denied employment due to drug or alcohol use, the employer may receive a presumption that such termination or denial of employment was for cause.

Non-Discrimination

Enforcement of drug free workplace policies must not violate state or federal laws against discrimination. Under the Americans with Disabilities Act, illegal drug use does not qualify as a disability. However, the ADA may apply to employees who are not current illegal drug users but who have a disability related to their former illegal drug use; or who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; or who are who are regarded, erroneously, as illegally using drugs. Additionally, employers must ensure that drug testing conducted is done in a non-discriminatory manner and that the imposition of disciplinary action for anti-drug policies is not discriminatory.

State Laws and Marijuana Use

Recently several states have enacted legislation permitting marijuana use, raising the issue of the impact of such legislation on drug free workplace policies. It is important that employers consult with counsel in addressing their workplace policies to ensure that they comply with state laws on medical marijuana use. Some states, including Arizona, Connecticut, Delaware, Maine and Rhode Island, have laws protecting employees who have prescriptions for medical marijuana from discrimination. Courts in Washington and Oregon have upheld employer decisions in terminating employees who were legally prescribed marijuana on the basis of their violation of employer drug free workplace policies, holding that the employers were not required to accommodate medical marijuana use.

The legalization of medical marijuana also poses implications for unemployment and workers compensation benefits. In Braska v. Challenge Manufacturing Co., 861 N.W.2d 289 (Mich. App. 2014), the court held that an employee who was terminated for using medical marijuana was entitled to unemployment benefits. The employee obtained a medical marijuana prescription for chronic back pain. After he injured his ankle at work, he was sent for a drug test and tested positive. When his employer terminated him for violating its drug free workplace policy, he applied for and was granted unemployment benefits. The employer appealed the decision to the Michigan Compensation Appellate Commission which denied his benefits. On appeal, the court noted that the Michigan Medical Marijuana Act provided that "[a] qualifying patient [issued a medical marijuana card] shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau."

Limitations of a Policy

Employers should be aware that state statutes allowing for presumptions under a drug free policy may be subject to constitutional challenges and provisions of the statutes have been invalidated on due process grounds. For example, in 1996, a Florida Court of Appeals declared a provision of the Florida drug free workplace statute to be unconstitutional because it created an irrebutable presumption that an injury was caused by the influence of a drug if the employee tested positive and the employer had established a drug free workplace under the statute. The case - Hall v. Recchi America, Inc., 671 So.3d 197 (Fla. App. 1996) - arose from a workplace accident in which the employee plaintiff was injured when a co-worker, who was carrying a steel apparatus, tripped and jabbed him in the head. The employee was tested within thirty minutes of the incident and the results were positive for marijuana use. The employee admitted to smoking the drug five days before the accident but denied being under the influence at the time of the accident. An expert in pharmacology testified that the level of metabolite found in the test results was consistent with the employee's testimony. The employee challenged the Florida law alleging that it violated the federal and state constitution under the Fourth Amendment and that it violated his due process and equal protection rights. The court invalidated the rebuttable provision finding that it violated an employee's due process rights because "[a] positive confirmation of a drug at the time of the industrial injury does not conclusively establish that the industrial accident was causally related to the intoxication of, or the influence of the drug upon, the employee." This was "readily apparent" by the fact that the evidence showed that the accident was caused solely by the co-worker who tripped and caused the apparatus to hit the employee in the head.

State statutes creating voluntary drug free workplace policies typically provide that when an employee tests positive for drug use after an accident, the presumption is that the injury was due to the influence of such drug use. However, this presumption can be rebutted by the employee. Furthermore, courts are not reluctant to find that an employee has rebutted the presumption where the evidence reveals that the accident was unrelated to the employee's drug use. For example, in Interstate Mechanical Contractors, Inc. v. McIntosh, 229 S.W.3d 674 (Tenn. 2007), an employee successfully rebutted the presumption in his workers compensation claim. The employee was injured during a demonstration of a roller machine to a co-worker. The co-worker activated the machine as the employee was reaching over the machine, causing the employee's hand to be caught in the rollers. Although the employee quickly managed to stop the machine, his left hand was severely injured causing two fingers to be amputated. A drug test after the accident showed evidence of marijuana use. The employer, who had implemented a drug free workplace under Tennessee law, was entitled to a presumption that the employee's injury was caused by his drug use. However, the evidence established that the employee's reaction time was not impaired by his drug use and that it was not possible for him to deactivate the machine before his hand got caught in it. Additionally, even if the employee may have been negligent in reaching over the machine, such negligence is not a bar to recovery under workers compensation law. This case highlights the importance of a robust safety and training program in addition to a drug free workplace program as effective measures to protect employees.

Drug free workplace policies are an effective tool for employers to provide a safe workplace for their employees and to protect against the cost of substance abuse. However, employers must ensure that such policies are drafted in compliance with both federal and applicable state laws, that the policies are effectively documented and communicated to employees, and that they are implemented in a non-discriminatory manner.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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