The trend of legalizing marijuana for medical and/or recreational use is growing and may soon affect nearly all states. The recent election brought the number of ‘medical marijuana’ states to 28 plus the District of Columbia; while eight states now allow it for recreational use. Add to that the fact that several states have seen cases that allow injured workers to obtain the drug through their workers’ comp systems, and you’ve got a veritable nightmare for employers — especially those in multiple jurisdictions.

But employers don’t have to sit by and watch your workforce go up in smoke. You can — and should — take steps to keep your workers, property and the business itself safe.

Drug testing

The most effective way to prevent drug-related workplace injuries and illnesses is to avoid hiring drug users. While passing a drug test certainly doesn’t guarantee an employee won’t use marijuana or other drugs down the road, it is at least a way to eliminate habitual users from entering your workforce.

Even in states where marijuana is legal — for medicinal or recreational purposes — private employers still have the right to test conditionally-hired job applicants. How you handle a positive test result, however, likely differs among states; so it behooves you to understand the laws in your jurisdiction.

Beyond pre-employment testing, employers may also do drug testing randomly, based on reasonable suspicion, for return-to-work screening and post-accident. OSHA’s new injury reporting rule has raised many questions about whether employers that conduct post-accident drug testing may run afoul of the agency.

OSHA has tried to clarify the confusion by saying drug testing policies should be limited to situations where drug use is “likely to have contributed” to the incident, and for which the test can “accurately identify impairment.” Injuries such as bee stings, repetitive strain injuries or one caused by a machine malfunction would not qualify for mandatory testing, under OSHA’s explanation. Federal drug testing has not changed.

There are generally three types of drug tests:

• Urinalysis. The first and still most widely used, this is less expensive than some other test methods. It detects most drug use for the previous 2–3 days and is the only type allowed for federal testing. On the downside, it is easily manipulated and cannot measure the frequency of drug use.
• Oral fluid. These are collected under supervision, making tampering impossible. It determines drug use for up to 48 hours and is generally inexpensive. It also does not measure frequency of use.
• Hair. Perhaps the best for pre-employment tests, as its detection window is generally 3 months. However, it is the most expensive type of test. Also, it typically takes longer — up to 10 days versus 1 or 2 — for the results.

Create/Update Drug-Free Workplace Policy

Lower job performance, reduced productivity, absenteeism and higher workers’ comp costs are among the results of workers who abuse drugs. As an employer, you are obligated to provide a safe work environment for all employees. Those are among the biggest reasons to have a workplace drug and alcohol policy — and communicate it clearly to your workers. A policy can include the following:

• Basic assumptions. The policy should spell out why the company is establishing it, what is expected of employees and the consequences for violations, including dismissal.
• Broad statement. The policy should clarify that employees may not perform their job duties under the influence of alcohol, illegal drugs, or mind-altering prescription medications — including marijuana. In states where marijuana is legal you should include a section with clear guidelines devoted to that drug.
• Drug testing. If your company conducts drug tests, that should be included with the specific procedures outlined. It should also say that workers with prescribed medical marijuana may not use the drug while at work. The policy should be similar to that for narcotic prescriptions.

Workers in states that have medical and/or recreational marijuana laws on the books are likely confused about their rights to the drug in the workplace. Therefore, you should train supervisors on it and ensure all employees understand it. Employee handbooks, posters, intranet messages and other technology-related approaches are ways to disseminate the policy.

Know the law

Before drafting or changing a policy you need to understand the specifics of all the jurisdictions in which you operate. Much like the workers’ comp system itself, marijuana laws vary by state. Statutes may have vastly different provisions, especially when it comes to the workplace.

In states where the drug is legal, courts have taken different actions as to whether marijuana is reimbursable through the workers’ comp system. Following several court rulings, New Mexico passed a reimbursement rule.

In other states, however, laws say workers’ comp payers are not compelled to pay for the drug. They include Arizona, Colorado, Michigan, Montana, New York, Oregon and Vermont.

In some states, employers that can prove the drug is the cause of a work-related injury are off the hook for reimbursement. In others, the injured worker may be entitled to payment even if the drug caused the accident.

Summary.

The laws surrounding marijuana are changing rapidly. Employers are well advised to stay abreast of this constantly changing situation through legislation and case law; review and update workplace substance abuse policies often; and consider drug testing — at least for pre-hiring.

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Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Problem:

23 States and the District of Columbia have or will be approving recreational marijuana use.   Chances are more states will approve recreational use since politicians have discovered a tax gold mine from marijuana.  Unfortunately marijuana use is very dangerous.

Marijuana intoxication contains as many as 400 known chemicals entering the body.  Marijuana smokers inhale more deeply and keep the smoke in their lungs longer. These smoke toxins and use procedures make it more dangerous, allow for greater side effects, as well as allows for greater permanent disabilities.  One ingredient THC has increased in toxicity and causes the greatest disability of brain damage.  In 2008 it reached a high of 9.6%.  Some foreign marijuana has been found that exceeded 24%.  (Interactions with other bodily functions and prolonged use deterioration are still being developed by the scientific and medical communities.)

Deteriorating health and employee performance impacts from marijuana use can become part of a workers compensation injury claim. Employees under marijuana intoxication coming on the job, or becoming intoxicated on the job, have great potential to cause or create situations for on the job injuries.   Should this happen, the employer can be faced with paying weekly benefits and medical care costs.  This may even cause exposures for the  employee’s lifetime.  Remember worker compensation laws require that the employee must be brought to pre-injury status.

Employer Reliefs Minimal:

Most or all workers compensation acts provide the employer with relief or no responsibility for employee self-inflicted injuries.  Substance abuse with resulting health impairment has been held to be self-inflicted and workers compensation cases have been denied based on this premise.

Two theories stand to defeat such relief. First the state law or a decisional finding, requires the employer to take the employee as found.  This means, any underlying health condition or pathology aggravated by a compensable injury becomes the employer’s responsibility to address and correct until the employee is brought back to pre-injury status.

Second, all workers compensation judges and referees operate on the presumption that the employee is to be given as much leeway as possible.  The rulings and decisions are to favor the employee as much as possible.  The employers have to present extraordinary evidence In order to have any hope of prevailing with a decision in their favor.

State Second Injury Funds used to assist employers with reliefs from non- related injury issues.  Currently, most states funds are almost non-existent.  The few that are functional require difficult steps for relief.  Employers need to have knowledge of a pre-existing condition prior to the compensation injury.   Most funds require the employer to pay first and seek reimbursement.  Since many state fund second injury units are often under-funded, recovery may be slow.

Determining Marijuana Usage:

There are basic signs for the layman to suspect marijuana use and intoxication.

The following steps are some outward signs.  As with any substance, many employees can hide their use.  Do not challenge the employee or make accusations without factual investigations and toxicology studies to confirm use.

1. Loss in train of thought during conversations.
2. Increase in appetite with gorging on junk food and sweets.
3. Lack of energy and loss of motivation.
4. Excessive sleeping patterns.
5. Bad sleeping habits.
6. Possession of Drug paraphernalia. (Most users roll their own cigarettes.)
7. Legal or financial problems.
8. Paranoia attitudes. (Everyone is out to get me.)
9. Slow down or poor performance of work duties.
10. Glassy eyes or staring off into space.
11. Slurred speech.
12. Poor vehicle operation and lack of attention to driving rules.
13. Tips from fellow employees.
14. Data from accident and health claim records.
15. Excessive use of sick time.
16. Deterioration of personal grooming.
17. Prolong observation of these signs. THC stays in the body for days up to weeks depending on the amount and length of use.

Develop Policy and Procedures for Marijuana Intoxication.

Start a policy and procedure program soon as possible.  Use a professional organization that specializes in developing and implementing the program.  Be sure the procedure conforms to good legal practice and evidence obtained will be upheld and hard to challenge by the employee.

Always include a toxicology study when screening new employees and require pre-employment physical examinations.

Join with other employers and industry associations in petitioning legislators for changes in workers compensation law that will work to bring this problem under control.

Summary:

Marijuana use is here and will affect workers compensation claims dramatically.   The exposure and associated cost will be monumental.  Develop a policy and procedure that will work to minimize these consequences.

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@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, attorney, or qualified professional.

As an employer, you want to give your employees the benefit of the doubt.
Sure, you want to believe that all your workers come to work each and every day drug-free, but can you say that with 100 percent certainty?
According to the National Council on Alcoholism and Drug Dependence (NCADD), drug abuse in the workplace costs business owners $81 billion annually. With that staggering figure in mind, you as an employer have to do everything possible to make sure your business stays drug free.

Workers Comp Impacted

 
If you did not already know this as an employer, take note that running a drug-free workplace allows you to reduce your required workers comp premiums. In what should be common sense, no drugs in the workplace (included to mean employees do not report for work under the influence) means reduced risk for the on-the-job accidents.
Looking nationwide, if Georgia employers have their drug-free workplace program certified by the Georgia State Board of Workers Compensation, they get in return a seven and one-half percent (7.5%) reduction on their workers comp premium. When the employer submits a copy of their certificate of a drug-free workplace yearly to their comp insurance carrier, they continue to receive the 7.5% decrease in their total work comp premium.
Self-insured employers in Georgia can also take advantage of the savings.
The self-insured employer submits a copy of their drug-free workplace program certificate when they file their annual payroll report. The self-insured employer can decrease the monetary figure they set aside for “premiums” which in turn will lessen the amount of company is regularly assessed by the Georgia State Board of Workers Compensation.
The state statutes in Alabama, Arkansas, Florida, Mississippi, South Carolina, Tennessee, Virginia and Washington State all include provisions that stipulate a five percent (5%) discount on workers comp premiums for providing a drug-free workplace. Keep in mind that a number of these states do in fact require an annual certificate as does Georgia, so review with the state department that administers workers comp in your state.

Ohio, Hawaii and Idaho
In the Buckeye State of Ohio, officials implemented a five-year phased in workers comp premium decrease for those businesses sporting a drug-free environment.
As the five years culminates, the employer showcasing a drug-free workplace over the five-year period gets a 20 percent decrease in the comp premium the state charges.
In the Aloha State, Hawaii businesses who offer both health and safety programs to include a drug-free workplace policy, also obtain a five percent insurance premium discount. (The difference with Hawaii and the other 5 percent discount states noted earlier is you have to have implemented both a safety program and a health program to receive the discount).
Lastly, Idaho’s state statute does not specify the figure for premium reduction the employer will attain for a drug-free workplace.
Their law states that the employer who provides drug and alcohol testing for all prospective employees and present workers will qualify for a workers comp premium decrease.
In the event you operate in a state not mentioned, be sure to ask your broker what premium decrease you may be eligible for in running a drug-free workplace program.
Think about it, having a drug-free environment in your workplace makes for better employees, better rates on your comp costs, and ultimately better revenue.

Author Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@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, attorney, or qualified professional.

Most employers understand the importance of drug testing to prevent accidents that can injure people or property. Work related accidents resulting in employee injuries should include a drug test as part of the immediate medical care.

Most private employers have a legal right to test for a wide variety of drugs. This can be complicated when there is a union. It is important that before designing a drug-testing program that an employer knows the various state and federal laws that apply to them. For more information about various state drug testing laws see http://reduceyourworkerscomp.com/drug-testing-state-laws/

A drug test involves taking a biological specimen and having it analyzed for the presence or absence of specific drugs or their metabolites, the products of metabolism. The biological specimen can be urine, blood, hair, saliva or even sweat.

SAMHSA Panel

Federal agencies conducting drug testing must follow procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. More detailed information about drug testing is available from http://www.dol.gov/elaws/asp/drugfree/drugs/screen92.asp.

The five substances tested in federal drug-testing programs are:

• Cannabinoids (marijuana, hash)

• Cocaine (cocaine, crack, benzoylecognine)

• Amphetamines (amphetamines, methamphetamines, speed)

• Opiates (heroin, opium, codeine, morphine)

• Phencyclidine (PCP)

Blood Test

A blood drug test is more accurate than the testing of urine. The blood sample is drawn from the employee, labeled and sent to the laboratory where it is placed in a centrifuge where the blood plasma and blood cells are separated. The plasma is then tested for the presence of illicit drugs. Blood testing is not commonly used as it is considered more intrusive and is expensive. However, it is considered the most accurate drug test.

Urine Drug Screen

The most common drug test is the urine drug screen called urinalysis. This typically involves collecting a urine specimen in a cup specifically designed for this purpose. The cup comes with a cap that seals. The cap is sealed with tamper resistant tape. A label with the either the employee’s name or a unique number is used to identify from whom the specimen was obtained. The urine specimen is delivered to the screening laboratory.

How Urinalysis Is Performed

To perform the test, a specimen is split into half. The first half goes into an analyzer that measures the presence or concentration of a substance in the urine. If the test shows the presence of a drug, the second half of the urine is test using a gas chromatography method. This means that they separate the urine into the various substances within it. The test results are then reviewed by a physician for confirmation. If the test results are negative, the employer is advised. If the test results are positive, the employee is contacted to see if there is any valid reason for the test result to be positive, e.g. use of a prescription drug.

A urine drug test has a longer detection window of time then a blood test. Urine tests are accurate for cannabis for at least three to seven days. However, they may be valid up to 30 days for heavy users or users with high body fat. Urine tests are accurate for cocaine for at least two to five days. Urine tests are accurate for amphetamines for at least one to five days, except for methamphetamine that is accurate for three to 15 days. Urine tests are accurate for codeine for two to three days and heroin for three to four days. They are accurate for PCP for three to seven days for a single use, but up to 30 days for chronic users.

Drawbacks of Blood and Urine Tests

Most illicit drug users know that urine and blood tests are accurate for only recent use and may try to delay their drug testing until their body has eliminated the drugs. Time is not the only factor that determines whether the drug test will reflect recent drug use. Factors include the type of drug used, the person’s body mass, metabolic rate, age, overall health, the amount and frequency of use, and their urine pH. Some drug users may try to flush the drugs out of their system by drinking copious amounts of water or detox drinks they can buy over the internet. There are also users who may try to pass off someone else’s urine as their own and various devices such as “the whizzinator” to try to help them accomplish this.

Hair Stat Test

In the last decade the use of hair in laboratory test for the detection of illicit drugs has developed into a reliable forensic toxicology method that has general been approved by courts. Once ingested, cannabinoids, cocaine, amphetamines and opiates are metabolized by the body. Their breakdown products enter the hair root where they are deposited and remain until the hair grows out and is cut off or the hair falls out. Except for the abuse of alcohol, hair is considered a very reliable indicator of illicit drug use up to 90 days after the drug was ingested. To perform the test a small amount of hair is cut off very close to the root. Some drug users have attempted to get around the test by dying their hair.

Sweat Patch

One method that courts and probation offices use to test for drugs is called the sweat patch. It is an adhesive patch similar to a nicotine patch that the user will typically wear for a week that will measure whether drugs are present in a person’s sweat. These have been the subject of court challenges.

According to the Tennessee Department of Labor, thirty-eight to fifty percent of all workers compensation claims are related to substance abuse. How the illicit use of drugs will impact the work comp claim varies tremendously from state to state. In approximately 40 states the employee’s workers compensation benefits can be denied or reduced for being under the influence of drugs at the time of accident.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.
Editor Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

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• Require the physician treating the employee to complete a urine toxicology drug screen at each office visit

• If the prescribed medication(s) is not in the injured employee’s system, the further replacement of the medication should be stopped

• If the prescribed medication(s) is in the injured employee’s system, but at a lower level then it should be, the dosage and/or frequency of the prescribed medication should be reduced accordingly

• If the drug screen included cannabis or other illicit drugs, all narcotics should be stopped, if state law permits

• Often there is a less expensive narcotic that provides the same level of pain relief to which the injured employee can be switched, for example from oxycodone to tramadol

• Generic versions are available for many name brand narcotics

• A request should be made to the nurse case manager to discuss with the medical provider the switching of the claimant from his/her favorite narcotic(s) to an opiate agonist. An opiate agonist is a drug that causes the receptors in the brain to feel the effects of a narcotic, even though the effect isn’t actually occurring.

• If the medical provider has also been dispensing the drugs to the injured employee, a letter should be sent to the employee, employee’s attorney and the doctor advising all medications will be provided by the pharmacy benefit managing company through the pharmacy benefit card provided to the employee. This accomplishes two things, it removes the incentive for the doctor to over prescribe, and it prevents the employee from self choosing the pharmacies to obtain duplicate prescription refills.

• A list of medications prescribed along with the dosage amount of each medication prescribed for the injury should be obtained from the medical provider. This list of medications should be provided to the pharmacy benefit management company with instructions to not provide any other medications or higher amounts than the prescribed dosages.

• If the medical provider is indifferent to controlling the employee’s narcotics addiction, a drug utilization review to verify the adequacy and accuracy of the medications being prescribed should be completed.

• A senior nurse reviewer can be utilized to constantly oversee and manage the drugs prescribed to an injured employee.