April 19, 2009: The West Virginia Drug Free Workplace Act, (DFWA) newly enacted in 2008, was amended to extend its reach to all levels of government and raises the contract value to over $100,000. The amendment is awaiting the Governor’s signature.
The DFWA requires all contractors, defined as any employer working on a public improvement without regard to whether they are serving as the prime or subcontractor to another, to test for nine (9) drugs, including marijuana, cocaine, opiates including hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines, barbiturates, benzodiazepines, methadone and propoxyphene.
No public authority, including as amended:
“any officer, board or commission or other agency of the State of West Virginia, its counties or municipalities or any political subdivision thereof, authorized by law to enter into a contract for the construction of a public improvement, including any institution supported, * * * in whole or in part, from public funds, may award a public improvement contract which is to be let to bid to a contractor unless the terms of the contract require the contractor and its subcontractors to implement and maintain a written drug-free workplace policy * * * and the contractor and its subcontractors provide a sworn statement in writing, under the penalties of perjury, that they maintain a valid drug-free workplace policy in compliance with this article.” [emphasis added].
Among other requirements, the contractor and each subcontractor must annually provide a sworn certificate of compliance that they maintain a drug-free workplace which includes pre-employment, reasonable cause, post-accident and random testing, that they have a written policy and biannual two-hour employee awareness education and annual two-hour supervisory training. (workersxzcompxzkit)
Penalties for non-compliance include possible conviction of misdemeanor, fines and possible exclusion from bidding on future public works.
Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422 centerfordrugtestinformation@yahoo.com www.centerfordrugtestinformation.com
US Drug Testing Laws: www.ReduceYourWorkersComp.com//drug-testing-state-laws.php
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o not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Can YOU Afford a $583,413 Drug Testing Policy Disaster?
The Center for Drug Testing Information (CDTI) Drug Testing Policy Project reports:
By neglecting a few key words in its drug testing policy, ConocoPhillips was found in “willful” violation of Oklahoma’s Workplace Drug and Alchol Test Act.
A jury awarded the employee $583,413. An additional negotiated amount for attorney’s fees significantly increased the award.
Here are a few other drug testing policy “train-wrecks” that could have been avoided.
1. Minnesota: 2008. INGDirect faced punitive damages for not accurately enforcing state law; case was settled out of court. (Wehlage v. ING BANK FSB, d/b/a/ING DIRECT, Case NO. 07-CV-1852 (PJS/RLE).
2. Missouri: 2006. Wal-Mart looses unemployment case because the company policy did not accurately reflect state law. (Gaylord v. Wal-Mart Associates, Inc., and Division of Employment Security, WD 65939).
3. Connecticut: 1996. Employer failed to consider state law (workersxzcompxzkit) requirements when enforcing its policy. (Doyon v. Home Depot U. S. A., Inc. 850 F. Supp.125).
For Help: Contact Bill Judge one of the nation’s more experienced drug testing lawyers. Bill has assisted employers in developing hundreds of policies in virtually every state, including some of the largest employers in the country.
Author: Bill Judge
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation’s schools. Attorney Judge, JD, LLM can be reached at: 708-3341-80100.
Click on these links to try it for yourself.
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
ConocoPhillips Found In "Willful" Violation Of Oklahoma's Workplace Drug and Alcohol Testing Act
A federal district court has found ConocoPhillips in "willful" violation of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Okla. Stat. tit.40, §§551-565. (the Act).1 A Jury then awarded the employee $583,413. An additional negotiated amount for attorney's fees significantly increased that award.
Finding the company in willful violation of the Act, the Court adopted the Oklahoma Supreme Court's definition of "willful" as used in the Act as "not only conscious, purposeful violation of the Testing Act, but also deliberate disregard of the law by those who know, or should have known, of the requirements of the Testing Act." 2
This is a case that has been in contention for more than four years in both state and federal court. The employee was fired for failing a breath test. In state court the company was found in violation of the Act for using a non-licensed test facility. Here, (workersxzcompxzkit) the issue was the employer's failure to provide the employee with the required information in its policy. The policy failed "to include in either its "Alcohol Plan" or its "U.S. Substance Abuse Policy" information about "[t]he available appeal procedures, remedies and sanctions." Such information was required by Section 555(A)(11) of the Act.
The court also concluded that strict compliance with the requirements of the Act is required. Quoting a state court decision on the subject, the court said: ". . . this court declines to make the standards less than mandatory by grafting into the Act a wholly foreign concept of substantial compliance."
Employers in Oklahoma would be wise to learn and incorporate the requirements of the Standards for Workplace Drug and Alcohol Testing Act. 1 Estes v. ConocoPhillips Case No. 05-CV-445-GKF-PJC (N. Dist. Okla., January 21, 2009)); Judgment entered February 13, 2009. 2 Citing Estes v. ConocoPhillips, Co., 184 P.3rd 518, 527 (Okla. 2008) Author: Atty. Bill Judge
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-334-8010.
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
WHAT RULES APPLY?
Federal Judge Says You Better Know
"For years I have been preaching about the need to know and follow state law as they apply to drug testing. Now, a federal judge in Minnesota agrees." Attorney W. J. Judge
INGDirect will be subject to the unusual sanction of punitive damages for wrongfully firing a Minnesota employee who tested positive for illicit drug use. In 2002 the plaintiff was hired in the INGDirect IT department. He began using methamphetamines in 2003-4. He told his supervisor that he was going to seek treatment. Using vacation time and short-term disability he was off the job for about 8 weeks. Two months after returning to work he tested positive on a drug test required by INGDirect. He was offered treatment and accepted. While he was in treatment he was fired. His treatment, which began in November '05 continued to October ‘06. In March '06, while still in treatment stemming from his first positive drug test, he was terminated. He sued, claiming his termination violated state law. The Court agreed.
The Court explained: Under Minnesota law, most employment is at-will, and thus employees can be fired for any reason or no reason — with rare exceptions. See, e.g., Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 741 (Minn. 2000). One of those rare exceptions is found in subdivision 10 of § 181.953 of the Minnesota Statutes, which limits the right of employers to fire or otherwise discipline employees based on the results of a drug test. Minn. Stat. § 181.953 subd. 10. Specifically, subdivision 10(b) of § 181.953 provides: [A]n employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless the following conditions have been met: (1) the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and (2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.
The Court granted plaintiff's motion for summary judgment saying: Because DATWA required ING to allow Wehlage to participate in a treatment program after his first positive drug test in November 2005, DATWA implicitly prohibited ING from firing Wehlage for absenteeism while he was participating in that program. The Court therefore rejects ING's contention that it justifiably fired Wehlage for absenteeism. Absenteeism that results from an employee's attendance at a treatment program in accordance with subdivision 10(b) is not an independent basis for termination apart from the positive drug-test result that led to the treatment.
Although the plaintiff had not asked the Court for punitive damages the Court, on its own, allowed him to amend his complaint to ask for them. Why? The Court appeared upset that INGDirect didn't consider the state rules that applied here. The Court said: Wehlage's evidence demonstrates that although ING's employee handbook included a drug-testing policy based on [state law], the employees involved in the decision to fire Wehlage gave no thought to that policy before firing him. Donat, the human-resources employee who asked Wehlage to submit to a drug test, could not recall whether he reviewed ING's DATWA-based policy when ING decided to fire Wehlage. Indeed, Donat seems to have had no idea whether DATWA limited ING's ability to fire an employee who was in a drug-treatment program.
In short, there is no evidence in the record that any of those who were actually or potentially involved in deciding to fire Wehlage gave a moment's thought to [state law], despite the fact that ING's employee manual contains a section on [state law]. Perhaps Rizzo discussed [state law] implications with respect to Wehlage with ING's in-house counsel, but ING asserted the attorney-client privilege as to such discussions, so there is no evidence regarding what Rizzo may or may not have asked, or what an attorney may or may not have told her. The Court therefore finds, based on the evidence in the record that Wehlage has made a prima facie showing that ING acted with "deliberate disregard" for his rights under [state law]. Wehlage is entitled to add a claim for punitive damages to his complaint. All multi-state employers would do well to recognize that there is a real need to know what rules apply to the drug and alcohol tests they require and to follow them. The case recently settled for an undisclosed amount.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
On March 12, 2009 a federal court for the Eastern District of New York found that a workplace drug test is not covered by the New York Consumer Protection Act.[1] The Act provides:
"[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.[2] * * * . . . any person who has been injured by reason of any violation of this section may bring an action" for damages."
The Court, citing previous decisions found that "[a]s the Consumer Protection Act's name indicates, its purpose is to protect the consuming public. Generally, claims under the statute are available to an individual consumer who falls victim to misrepresentations made by a seller of consumer goods through false or misleading advertising. * * * Courts considering the scope of the statute have repeatedly held that ˜a consumer, for § 349 purposes, is one who purchase[s] goods and services for personal, family or household use.' * * * "New York courts have generally found that business-to-business transactions do not give rise to § 349 claims, particularly when the disputed transaction does not have ramifications for the public at large." It was undisputed in the case that the contractual relationship was between an employer and a laboratory. The record showed that the "commodity" in question – a drug test – was not a consumer product but a service that only a business would purchase.
The Court found that the Plaintiff failed to show that the drug testing transaction had ramifications for the public at large. The Court said: "Simply put, the drug testing at issue in this case falls outside the scope of [the Consumer Protection Act]."[4]
1-Siotkas v. LabOne, Inc. et al., 01-CV-6242 (SMG), 01-CV-6243 (SMG)(3/12/09).
2-N.Y. GEN. BUS. LAW § 349(a).
3-Id. § 349(h).
4-The Court further found that the Act didn't apply because the services were performed outside the state of New York. ___________________________________________________________________________________
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel or other professionals before implementing any cost containment programs.
©2008 AmaxxRisk Solutions, Inc. All rights reserved under InternationalCopyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Today, with every drug test situation we must ask: "What Rules Apply?"
In years past it may have been OK to mirror federal rules, but today things have changed. Just over 22 years ago, workplace drug testing got its "big start" when President Reagan issued Executive Order 125634 [2] requiring each federal agency to establish a substance abuse prevention program, including drug testing. In 1987 HHS/NIDA (now SAMHSA) issued its Mandatory Guidelines and in 1988 DOT issued its rules. In 1989 the United States Supreme Court, for the first time, addressed and upheld the concept of workplace drug testing.
Since then the focus of the drug-test industry and employers has been on "federal" rules. (Either SAMHSA or DOT). But, unless the test is federally mandated that focus is misdirected. Since the mid-1980s there have been over 7,000 court cases issued and more than 550 state laws passed that impact workplace drug testing.
As it relates directly to what MROs do there are: 21 states that require non-regulated employers to medically review results; 3 states have times for contacting an MRO different than federal rules; 1 state (OR) requires the MRO to report a positive result to a state agency.
On other issues that affect MRO's employer-customers: 12 states have alcohol cut-off levels different than DOT; 15 states require all collections to be split; 8 states require a retest of a positive result; 21 states specifically define or prohibit [3] post-accident tests; 30 states specifically define "specimen;" 19 states require written notice of a positive result; 14 states require posting notice of a policy.
These are only some of the many examples of state law issues that MROs and their customer-employers must know to avoid litigation and loss.
Other peculiarities include: one state that requires retest cutoff levels to be that same as initial confirmation levels; one state that limits employee contribution to the cost of split analysis to be no more than the employer paid for the original test; one state that requires the employer to pay for the cost of the split analysis; 3 states that require collectors to register with the state and pay a fee; states that prohibit observed collections and states that require proof of training for instant test administrators.
As you consider these issues keep in mind that 16 states make it a crime or authorize civil penalties for failure to follow state rules.
So, before you act, please ask: What Rules Apply? FN [2] 51 Fed. Reg 180 (Sept 17, 1986) states in part as follows: "The head of each Executive agency shall develop a plan for achieving the objective of a drug-free workplace with due consideration of the rights of the government, the employee, and the general public. *** (b) Each agency plan shall include: *** (5) Provision for identifying illegal drug users, including testing on a controlled and carefully monitored basis in accordance with this Order." FN [3] CT, RI and VT only permit tests based on reasonable suspicion.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
For the past 20 years the perception has been when conducting private workplace drug and alcohol testing that the best thing to do was to follow federal DOT rules. But, due to the many changes in state law "mirroring" DOT rules in your non-regulated drug testing program can get you into trouble. You must follow the rules that apply. A recent court decision in Minnesota makes this abundantly clear.
On November 5, 2008 a federal district court in Minnesota found in favor of an employee who, despite having his first positive drug test and contrary to state law, was fired. The Court appeared so upset with those who fired him that the court took the rare step of allowing the fired employee to amend his complaint to ask for punitive damages. The Court said:
Although [the manager] was aware that [the employee] was off work because he was in drug treatment, she did not consider [the MN state law] in deciding to fire him. Indeed, [the manager] was unaware that [a state law] existed. Notwithstanding the fact that she was responsible for ING's employees in Minnesota, [the manager] ignored the section of ING's employee manual discussing Minnesota's [law] because she personally was a Delaware employee. Further, . . . superiors in the IT department did not consider whether [state law] limited ING's ability to fire [the employee]. [The] immediate supervisor, knew nothing about [the state law] and had only a vague understanding of ING's corporate drug-testing policy. * *
In short, there is no evidence in the record that any of those who were actually or potentially involved in deciding to fire [the employee] gave a moment's thought to [state law], despite the fact that ING's employee manual contains a section on [state law]. FN1
Today, with every drug test situation (who to test, split or no split, medical review or no medical review, terminate or not, etc.) we must ask: "What Rules Apply?" Notes:FN1-WEHLAGE v. ING BANK, FSB, d/b/a/ ING DIRECT, Case No. 07-CV-1852 (PJS/RLE) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA 2008 U.S. Dist. LEXIS 90249 November 5, 2008.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel or other professionals before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Currently, 14 states offer some incentive(s) in exchange for any employer willing to establish a drug-free workplace program or that meet certain criteria. These incentives typically come in the form of workers compensation premium discounts and/or presumptive intoxication/denial of benefits.
In all but 4 states there is a statutory "intoxication" defense to a workers compensation claim. The intoxication defense in most states requires proof of two things:
1) proof of intoxication
AND
2) proof that the intoxication "caused" the injury. In some states one or both of these 2 steps may be "presumed" if a positive test was conducted per state rules or if the employee refused to test, as seen below.
The following categories describe the variations of state programs: 1- Premium Discount for establishing a DFW program; 2- Positive drug/alcohol test means a presumption of "intoxication;" 3- Positive drug/alcohol test means a presumption of both intoxication and cause, therefore a denial of benefits; 4- Whether an application must be filed with the state to get the benefits; 5- If there is a presumption the employee was NOT intoxicated; 6- The burden of proof to raise the intoxication defense if NO presumption of intoxication or cause exists or if presumption of intoxication exists but "cause" must be shown.
Caution: Court decisions and industrial commission opinions must also be consulted.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
In virtually every state you can challenge a workers compensation claim if the employee was intoxicated at the time of the accident, and if that intoxication "contributed" to the cause of the accident, according to Attorney Bill Judge. NCCI (National Council on Compensation Insurance,Boca Raton, FL) estimates that 38%-50% of all workers compensation claims involve a drug or alcohol issue. Attorney Judge has provided the following statistics to assist employers visiting our site. Here's what we know: 1-74.3% of current admitted drug users are employed [1]. 2- Up to 40 % of industrial fatalities and 47 percent of industrial injuries can be linked to alcohol consumption and alcoholism [2]. 3- 19% of those killed on the job in 1998 had drugs and/or alcohol present in postmortem toxicology report [3]. 4- Employers with drug testing have experienced a 51% reduction in workplace injury rates within two years of implementing a drug-testing program [4]. 5-A recent study showed that the average company sampled that has drug testing in place experienced an 11.41% reduction in workers' compensation experience-rating modification factor. At the same time, companies that did not implement drug-testing programs saw no decline in their workers' compensation experience-rating modification factor [5]. 6-14 states offer workers compensation financial incentives (premium discounts/presumptive denial of benefits) to employers with drug-free workplace programs. Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 at bjudge@lawsinhand.com Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Workers' Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com
74.3% of current admitted drug users are employed. Drug and alcohol use is a workers compensation issue.
Did you know that according to Attorney Bill Judge, in every state you could defeat a workers compensation claim if the employee was intoxicated and that intoxication contributed to the cause of the accident. In December of 2002 when an employer in Iowa wanted to challenge a $1.5 million workers compensation claim he was told that it couldn't be done. Yet, they did it! That employer was self-insured to $350,000. Paying this claim would have put them out of business! It was stopped because they did their homework and discovered that the Iowa Supreme Court had, just months earlier, affirmed the denial of benefits to a claimant that was positive for alcohol at 0.09. Garcia v. Naylor Concrete Co. and National American Insurance, 650 N.W.2d 87, (Ia. S. Ct., Number: 88 / 01-0341 (7/17/02)). The claimant in the case was positive for cocaine and alcohol at 0.289.
How do you do it? No one would tell you that every positive drug or alcohol test will result in a denial of a claim. But, that's where you start. If you're not doing post-accident testing you're not even in the game. You have to conduct post-accident/injury drug/alcohol tests; and you must conduct those tests in accordance with the rules that apply – per state law. When there is a positive post-accident tests it must be determined if that could start the intoxication defense.
Here's how it works? An injury occurs. A drug test is performed and is reported back positive. Based upon a series of factors, you decide if that claim should be denied. If the decision is to challenge, then spring into action.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools.
Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@fightreadynow.com
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
*Source: http://oas.samhsa.gov/nhsda/2k3nsduh/2k3Results.htm#ch2
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