What Risk Managers Need to Know about Drug and Alcohol Testing Programs

What Risk Managers Need to Know About Drug and Alcohol Testing Programs

Drug and Alcohol  screening is one of the most common risk management weapons in the arsenal of tools to contain workers comp costs; the goal is to hire employees who are capable of performing the job they are hired to do and to prevent losses where you can.

 

Among the tools  used are drug, alcohol and impairment testing that affect job performance. Medical evaluation programs often include such testing. Pre-employment screening of various types helps employers avoid hiring those who cannot safely perform the functions of the job. And, it also reduces costs because in twelve states, workers’ comp insurance premiums are discounted for companies with substance abuse policies and in 15 states presumption of intoxication and/or cause can avoid paying a claim.

 

In the workers’  comp risk management arena there are 4 types of drug and alcohol screening: pre-placement screening, reasonable suspicion or for cause, post accident testing and random testing.

 

There are several  types of polices we recommend employers institute, among these is a Company Medical Policy or Substance Abuse Policy. Like all policies, the terms of the policy will need to be customized to comply with corporate culture considerations and with various state and federal laws. Both the Company Medical Policy and the Substance Abuse Policy can refer to drug and/or alcohol screening.

 

The policy  should include what type of drugs the applicants or employees will be tested. Some model policy requires testing for marijuana and cocaine, but with the increased use of prescription drugs companies may also want to test of amphetamines, opiates and phencyclidine (PCP).

 

Consider  the scope of testing, who will be tested. The prime candidates are safety-sensitive workers, such as those who drive or operate machinery on public roads, employees engaged in hazardous duty or those working with radioactive or explosive materials, medicines or firearms. Essentially, any employee whose job affects health and safety.

 

It is probably  easiest to start a program with new hires rather than existing employees especially if a company does not have an existing program.  All prospective employees who have been offered employment are required to take a drug test. If the individual’s test results are positive, he will not be considered for employment.

 

The policy  should be communicated to all employees as part of an employee awareness and education program duty at the company. Some states require proof that each employee has been given a copy of the policy, so each employee should sign an acknowledgement that they have received the policy. Educating employees about the severity of the drug and alcohol problem is also important and in some states required.

 

The  type of testing to be done will include considering state law, as well as the cost and facilities needed for testing. For example, hair sample testing is more discreet and easier to collect samples, but is not allowed in some states. It is also more expensive and provides results for a longer duration of time – time that did not affect work performance.

 

Consider  why you want to have a drug testing program. For example, I had a company contact me to begin a drug testing program because they had a fork-lift driver who had repeat accidents, including running off a ramp and running into a warehouse support pole. I suggested that perhaps the accidents were due to eyesight problems, but because the employee wore Grateful Dead t-shirts, the assumption was he was using drugs. In fact, the issue turned out to be eye-sight related.

 

Disciplinary Guidelines:  In most states, there are no limits on the type of discipline imposed.  However there are six (6) states and Puerto Rico that limit the type of discipline that an employer may impose on employees who test positive.

 

Employee Assistance Programs:  In some states like Maine and Vermont an employer wishing to conduct workplace drug or alcohol testing must have an EAP.  Many other states offering benefits also require at least some form of local EAP resource file to be maintained.  (workersxzcompxzkit)

 

Overall, while implementing  a workplace drug and alcohol testing program may seem detailed, especially for multi-state employers, the benefits far outweigh these up-front details. It has been estimated that 38% to 50% of all work comp claims involve a drug or alcohol issue.  This being the case, a well-designed drug and alcohol program can help combat this reality and return hard earned dollars to the bottom line.

 

For the drug test laws in your state visit   http://www.reduceyourworkerscomp.com/drug-testing-state-laws.php

 

Authors: William Judge and Rebecca Shafer William Judge, J.D.  is an attorney who, for the past 24 years, has concentrated his practice on legal issues related to substance abuse in the workplace and in our nation’s schools. Mr. Judge provides risk management assessments, legal and consulting assistance and develops drug-testing policies for schools, employers and labor/management committees. He is the co-founder of the Center for Intoxication Defense Management, www.dtstatelaws.com that assists employers in defeating work comp claims when the worker was intoxicated. He can be reached at bjudge@lawsinhand.com or 708-334-8010.

 

Rebecca Shafer, J.D.,  President Amaxx Risk Solutions, Inc., Ms. Shafer is a graduate of Franklin Pierce Law Center and is licensed to practice law in CT and NH. For 25 years, she has been helping employers reduce workers’ compensation costs. Recently she developed Workers Comp Kit, a web-based cost containment program and is the publisher of www.ReduceYourWorkersComp.com, a resource website for employers with workers’ compensation problems. She can be reached at RShaferB@ReduceYourWorkersComp.com

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s comp issues.

 

©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com   860-786-8286.or

 

Comply with State Laws When Implementing Drug Screening Programs

Don’t Run From The Drug Screening Laws, Embrace Them!

Recently I had  a conversation with a multi-state employer who had lost an unemployment battle in Iowa. The employee applying for benefits was fired for testing positive for drug use. The Administrative Law Judge, when ruling against the employer, detailed the many ways the company drug testing program violated state law.

In response to  this perceived “harsh” ruling the employer stopped testing. After some time passed without testing a serious workplace accident occurred and three injured workers were drug tested. They all tested positive! The employer contacted me for help in re-implementing their testing program.

The moral of this  story (as a lawyer I apologize for using the word “moral”) is that employers shouldn’t abandon their drug test programs just because compliance with the laws may be difficult. Those laws should be embraced.

The law is an employer’s blueprint for protection.

The Iowa drug testing  law (Sec. 730.5) is very detailed. It can be viewed as both limiting employers but also very permissive in terms of explaining what employers can do. As an example, the Iowa law not only permits random testing of all employees but it also is the only state law permitting random testing of some facilities and not others at the employer’s discretion.

The Iowa law  tells you what you can and can’t do, who you can test, how to test, where you can test, what to test for and what discipline can be imposed in the event of a positive or refusal. Yes, there are more details to worry about than exist in some other states and some things to do like sending a written notice of a positive by certified mail. But, if you do these things you get the benefits of the law. Heck, (an Iowa term from one who grew up there), even the details of what the written notice of a positive must include have been provided by the state supreme court.  (workersxzcompxzkit)  What more do you want?

Learn about individual state laws at:  http://reduceyourworkerscomp.com//drug-testing-state-laws.php

Author: Attorney Bill Judge, J.D., LLM
Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422. info@centerfordrugtestinformation.com; http://www.centerfordrugtestinformation.com/. All Workers Comp Kit clients may have a complimentary subscrition to The Center for Drug Test Information. Ask.

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©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

Drug Testing Laws Workers Comp and Sports Is the NFL Different Than Any Other Employer with Union Workforce

Even Pro Football May Have To Follow State Laws

 

Two Minnesota Vikings  football players who tested positive for a banned substance were granted a temporary restraining order on Thursday, July 9, 2009, effectively blocking their suspensions imposed under NFL rules. The players claim their suspensions would violate the state drug testing law which prohibits discipline upon the first positive unless certain conditions, not applicable here, exist. (Sec. 181.953, Subd 10 (b))

 

The NFL and the Vikings  argue that state law does not apply because these players are members of the NFL Players Association (Union) subject to the rules under the current collective bargaining agreement. NFL spokesman Greg Aiello said that the court’s decision Thursday “effectively exempts two players from the NFL-NFLPA collectively bargained program, [and] further illustrates the critical importance of a uniform policy for all teams in the league and why this matter should be governed exclusively by federal law.”

 

But, is the employer  in this case – the Vikings – any different than any other Minnesota employer whose employees are represented by a collective bargaining agent? Why should professional football employers be treated any differently than an employer with Teamsters or professional carpenters or plumbers?

 

In fact the Minnesota  drug test law anticipates this situation by providing as follows:

 

“181.955 CONSTRUCTION.

 

  1. Subd. 1.  Freedom to collectively bargain.

 

Sections 181.950 to 181.954  shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in those sections.

 

  1. Subd. 2.  Employee protections under existing collective bargaining agreements.

 

Sections 181.950 to 181.954  shall not be construed to interfere with or diminish any employee protections relating to drug and alcohol testing already provided under collective bargaining agreements in effect on the effective date of those sections that exceed the minimum standards and requirements for employee protection provided in those sections.”

 

 

The Minnesota law is also the only drug testing law in the country that specifically includes professional football players as follows:

“181.951 AUTHORIZED DRUG AND ALCOHOL TESTING.

 

  1. Subd. 4.  Random testing.
    An employer may request or require employees to undergo drug and alcohol testing on a random selection basis only if (1) they are employed in safety-sensitive positions, or (2) they are employed as professional athletes if the professional athlete is subject to a collective bargaining agreement permitting random testing but only to the extent consistent with the collective bargaining agreement.”

 

Clearly the Minnesota Legislature  intended to include professional athletes in its legislation and it intended to bind collective bargaining agreements to its limitations. Whether the Minnesota Legislature had the legal authority to do this may be resolved in this case. (workersxzcompxzkit)

 

Today there are five  (5) states (CT, ME, MN, OK, & RI) that require the collective bargaining agreements to meet or exceed state law requirements. Two (2) states (IA & MD) laws provide that the collective bargaining agreements shall govern or override the state’s law.

 

There’s always more . . .

 

Author: Attorney Bill Judge, J.D., LLM can be reached at The Center for Drug Test Information, 877-423-8422.  info@centerfordrugtestinformation.com;  See our Drug Testing State Laws at http://reduceyourworkerscomp.com//drug-testing-state-laws.php

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©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

 

Positive Drug Test Results in Oklahoma and Utah Reduce Workers Compensation Costs

$20 Billion Available Through Post-Accident Drug Testing: If You’re Not Doing It You’re Losing Big Bucks
As I talk to employers  about their workplace drug and alcohol testing programs I am frequently amazed when some tell me they don’t do post-accident or post-injury drug and alcohol testing. Why am I amazed by that? Because the greatest financial benefit from drug testing comes from post-accident testing. Post-accident drug testing puts you in position (or better position) to defeat a workers’ compensation claim. In some states (CO, MO) if there is a positive test YOU WIN!! In two states, (OK & UT) if you are positive for drug or alcohol use you aren’t even eligible for workers’ compensation.

But, employers who don’t test aren’t even in the game.

Unless required,  there are two major reasons to drug test: first, to limit your liability and second, to make money by defeating workers’ compensation claims when an employee is positive. Most days, but especially in this economy, it is incredible that any employer would ignore a practice that will save money. Drug testing may be the only thing you can do to return money to the company’s bottom line.

How can this work?  Typically, to defeat a workers’ compensation claim an employer must show two things: first, that the employee was intoxicated at the time of the injury and second that the intoxication caused or contributed to that injury. Ten state (CO, FL, GA, MO, NV, ND, OH, OK, TN, and UT) provide a presumption of both intoxication and cause thereby denying a workers’ compensation benefit to anyone testing positive; six additional states (AL, AR, KS, LA, TX, and VA) provide a presumption of intoxication leaving cause to be proved. New Mexico (10%) and Wisconsin (15% or $15,000 which ever is most) provide a specific automatic deduction if there is a positive drug or alcohol test.

These laws are  in employers’ favor but employers are clearly not taking advantage. The numbers speak for themselves. There were approximately 40 million workplace drug tests conducted in 2007 but only about 56,000 were post-accident. Compare that to the fact that $54 billion was paid during the same time period in workers’ compensation claims while the National Council on Compensation Insurance says 38% to 50% of those claims involved a drug or alcohol issue. What’s 38% of $54 billion – more than $20 billion in potential savings.  (workersxzcompxzkit)

One should be careful  to follow state law since some states specifically define post-accident testing and others limit testing to only situations where there is reasonable suspicion.

Author: Attorney Bill Judge, J.D., LLM
Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422. info@centerfordrugtestinformation.com; http://www.centerfordrugtestinformation.com/.

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©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

Drug Sample Collection Must Be DIRECTLY Observed for Some Industries

An Employer ALERT

The Department of Transportation  (DOT) announced that as of August 31, 2009 the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation.

Under Section 40.67(b)(i)  the direct observation includes a requirement the donor  “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device.”

A drastic rule change? Yes, it is.  Collection providers are scrambling to prepare and some are going to stop providing collection services all together.

WARN YOUR EMPLOYEES

But, one key point  is being missed: employees must be warned!  In my opinion, all employers would be well advised to not only place a new warninig about this change into their policies but also to post notice of this change in conspicuous places throughout their workplaces.

Recent court cases  (e.g. McVey v. National Organization Services, Inc., Munn v. Kraft Foods, Inc.) have made it clear that complete knowledge of a company’s program and warning of the consequesces of violating that program are essential.

Failure to provide  adequate warning could cost an employer in a wrongful discharge action, unemployment case or workers’ compensation challenge.

Additionally,  it must be remembered that this change impacts not just DOT-regulated employers but, depending on employer choices and in certain industries, employers in 10 states (AL, CA, CT, DE, MD, MT, ND, OH, TN, VT) MUST follow DOT rules. Any employer that has chosen to follow DOT rules or negotiated doing so in their collective bargaining agreemant would also be impacted by this rule change.

Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422.
info@centerfordrugtestinformation.com     http://www.centerfordrugtestinformation.com/ 

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©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

Multi-State Employers MUST Have Separate State Drug Testing Policies

Employers Ask

 

Q: Do I have to have a written drug test policy?
A: Yes.

 

Q: Do I have to have state-specific written policies?
A: Yes
.

 

Q: Can’t we just have one that mirrors DOT?
A: No.

 

The days of simplicity,  of a single, one-fits-all approach to drug testing are gone. Multi-state employers can no longer rely upon a single (corporate) workplace drug test policy.  There are at least 21 states (and Boulder, CO) requiring or, depending on employer choices, justifing a separate policy.

 

This need is emphasized  by recent court decisions in Connecticut, Minnesota, Oklahoma and Vermont, among others, making it increasingly clear multi-state employers MUST know and follow local rules.  This means that “mirroring” DOT may be the biggest mistake an employer can make.

 

You have to follow  the rules that apply to the test being performed, be it DOT-regulated or conducted in a state with its own set of rules.

 

What are some of those rules?  A sample includes the following:
● 7 states limit discipline for the first positive;

● 12 states limit random testing to safety-sensitive jobs only;

● 23 states require either a split sample or retest;

● 23 states require that tests be conducted per federal DOT or DHHS;

● 19 states require written notice of a positive test – IA by certified mail;

● 12 states require that notice/policy be posted;

● 8 states require initial or annual training/education;

● 21 states specifically define what a “specimen” is;

● 18 states have specific alcohol positive levels.

 

These are but  a few of the many state-by-state differences any multi-state employer must take into account regarding who can be tested, when, how, where and for what substances.  Additionally many states expect to see their own format (e.g. Florida, Maine) or have specific language (e.g. Missouri, Mississippi) that must appear somewhere in the policy and/or notices to employees and/or applicants.  Failure to follow these rules and expectations could result in significant losses if yourthe employer’s policy is challenged.

 

Some recent cases  where employers ignored state rules, tested under their “company” policy and as a result lost when challenged include the following:

 

Oklahoma: 2009, ConocoPhillips pays $583,413 (over $750,000 with attorney’s fees) for willful violation of Oklahoma’s mandatory statute. Estes v. ConocoPhillips Company, Case No. 05-CV-445-GKF-PJC)

 

Minnesota: 2008, INGDirect pays punitive damages for not accurately enforcing state law. (Wehlage v. ING BANK, FSB, d/b/a/ ING DIRECT, Case No. 07-CV-1852 (PJS/RLE))

 

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)

 

Connecticut: 1996, Employer failed to consider state law requirements when enforcing its policy. (Doyon v. Home Depot U. SA., Inc. 850 F. Supp.125).

 

Additionally,  if a test was not performed as required under state or local laws an employer will be unable to defeat an unemployment claim or, worse yet, not be able to defeat a workers’ compensation claim that might have otherwise been easily defended.

 

The list of states  requiring/justifying separate policies and the reason(s) for this are as follows:

  1. AL       Voluntary DFWA & Presumptive Denial with warnings required
  2. AR       Voluntary DFWA
  3. CO       Presumptive Work Comp Denial law
  4. CT       Mandatory Law (unique criteria)
  5. FL        Voluntary DFWA (unique criteria)
  6. GA       Voluntary DFWA (unique criteria)
  7. HI        Mandatory Law (unique criteria)
  8. IA        Mandatory Law (unique criteria)
  9. ID        Voluntary DFWA (unique criteria)
  10. ME       Mandatory Law (unique criteria)
  11. MN      Mandatory Law (unique criteria)
  12. MO      Presumptive Unemployment requirements
  13. MS       Voluntary DFWA (unique criteria)
  14. MT       Mandatory Law (unique criteria)
  15. OH       Voluntary DFWA (unique criteria); Presumptive Work Comp Denial law
  16. OK       Mandatory Law (unique criteria)
  17. RI        Mandatory Law (unique criteria)
  18. TN       Voluntary DFWA (unique criteria)
  19. UT       Mandatory Law (unique criteria); Presumptive Work Comp Denial law
  20. VT       Mandatory Law (unique criteria)
  21. WY      Voluntary DFWA (unique criteria)
  22. Boulder, CO, Mandatory Ordinance (unique criteria)

 

Ten (10) of these states  (and Boulder, CO) are mandatory and there is no choice but to have a separate policy because of required language or other criteria.

 

Frequently,  employer operate under the misconception that if they “mirror” federal DOT rules they are somehow safe from liability and can operate from a single company policy.  Nothing is further from the truth.  There are many ways that following DOT can get you into trouble, such as states only permitting testing if there is suspicion of “impairment” on the job, states requiring different alcohol cutoff levels, states allowing more time to request a split sample to be tested, and many more.

 

The bottom line,  and it really does impact your bottom line, is you must follow the rules that apply to the tests you are conducting.  To do otherwise is simply dodging bullets. Find a full description of individual state and territory laws at http://www.reduceyourworkerscomp.com/drug-testing-state-laws.php.

Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422.  info@centerfordrugtestinformation.com;  http://www.centerfordrugtestinformation.com/.

 

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Do not use this information without independent verification.
All state laws vary.

©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

 

Workplace Drug Testing The Importance of Supervisory and Employee Education

Many companies  have already answered the question: “Why drug test?”  and found plenty of good reasons: compliance, safety, health, workers’ compensation advantages, preventing liability.
The next question is:   “Why train my supervisors and my employees in our drug testing program?”  and  the answers are pretty much the same: compliance, safety, health, workers’ compensation advantages, preventing liability.

 

Compliance?  Yes, because. . .
7 states  require at least one-time supervisory training.
3 states  require additional annual supervisory training.
5 states  require employee training.
1 state    requires employers to “develop a plan” for educating employees.

 

And, in states with no requirement?   If you don’t  you’re taking on a whole new set of risks in your drug testing program. It makes sense to educate your supervisors and employees because how can they use your drug testing program to enhance safety and health in the workplace if they haven’t been trained to implement the program?

 

Employers with drug testing   experienced a 51% reduction in workplace injury rates within two years of implementing a drug-testing program.)

 

A company   might find itself unable to take advantage of workers’ compensation discounts if its supervisors have unwittingly fallen out of compliance with a particular state’s drug-free workplace program.

Some states
   have “presumptive denial of benefits,” meaning while a properly executed drug testing program can make a workers’ compensation claim dissolve, the company could lose the advantage if a supervisor failed to follow that particular state’s  laws for post-accident testing.

Liability?
   If the employee’s lawyer knows more than the employer and the supervisor about state drug testing laws, both the employer and supervisory could find themselves paying a price.  In a recent Ohio case a manager was hit with a $1.6 million judgment when one of his employees caused a death at work. (workersxzcompxzkit)

Supervisory and employee training
  is just one more piece of the drug testing program puzzle.

 

Unfortunately,  there’s no “cookie cutter” approach because each state has its own laws.  And you, the employer must understand and implement the laws in every state where you conduct business.

 

Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422 centerfordrugtestinformation@yahoo.com or www.centerfordrugtestinformation.com

FIND U.S. Drug Testing Laws here:http://www.reduceyourworkerscomp.com/drug-testing-state-laws.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

 

Amendments to West Virginia Drug Free Workplace Act

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

Costly Drug Testing Policy Disasters

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.

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Workers Compensation Oklahoma Employer Found in Willful Violation of Drug and Alcohol Testing Act

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. Estes v. ConocoPhillips Case No. 05-CV-445-GKF-PJC (N. Dist. Okla., January 21, 2009)); Judgment entered February 13, 2009. 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

 

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