Toronto Public Transit Workers Subject to Random Drug and Alcohol Tests

Public transit workers in Toronto will in the near future be subject to random drug and alcohol testing as the city's transit service was given permission to start testing employees in safety-sensitive positions, according to a report from the Canadian OH&S News.
 
 
The Toronto Transit Commission (TTC) was pushing for random testing to be added to the Fitness for Duty policy because the current policy, which came into effect in 2010, has been ineffective at deterring workplace intoxication, says Brad Ross, director of public communications for the TTC. (WCxKit)
 
 
The current policy allows for workers in safety-sensitive positions – operators, maintenance staff, supervisors and executives – to be tested for alcohol and marijuana, cocaine, opiates, amphetamines and PCP, using breathalyzers and saliva swabs, when there is a reasonable cause or testing post-incident, post-violation, post-treatment and pre-employment.
 
 
Amalgamated Transit Union Local 113, which represents the majority of TTC workers, is already challenging the present policy, and random testing will be added to the grievance, commented Ian Fellows, the union's lawyer in the grievance litigation.
 
 
"It's an invasion of our members' privacy. It treats everybody as if they've done something wrong and it requires them to submit to an invasive procedure," says Fellows. "They've got to offer up a sample of their bodily fluid and their DNA. That's contrary to our agreement and we say the [Ontario] Human Rights Code and the Charter of Rights."
 
 
While specifics regarding how the program would run have not yet been worked out, Ross notes the TTC would work with a third party to develop a testing protocol and it would be at least a few months before a system would be ready to implement.
 
 
"We need to figure out what percentage of employees we'd need to test on an annual basis, but in theory the way it works is you show up for work and the system tells us it's your turn for random testing," he says.
 
 
The saliva swabs, as opposed to the traditional urinalysis when testing for drugs, only show whether a person was impaired when the swab was taken based on a pass/fail threshold, not if they had used drugs in the past. The swabs would be tested by an outside lab, Ross says. "We're interested in ensuring that when you report for work, you're fit for duty, not what you did two days ago or two weeks ago, for that matter."
 
 
This is not the first time the TTC has tried to introduce random drug and alcohol testing. When it first brought the Fitness for Duty policy to its board of directors in September of 2008, random testing was in the policy, but the board refused to give it the green light. However, the board has changed since the policy was first introduced.
 
 
Ross reports that TTC staff felt the random testing policy was needed and would revisit the proposal at a later date. Ross also dismissed a recent incident, where a TTC bus driver was found with marijuana in his possession after a fatal accident, as the reason for trying to reintroduce random testing.
 
 
"There have been a number of public incidents over the last couple of years that have been cause for great concern, and there have been incidents within the organization that have not been public but are a concern as well," he says.
 
 
The number of incidents involving drugs and alcohol has not decreased since the policy was introduced, Ross added.
 
 
Though the TTC has data comparing the number of incidents from 2006 to 2008 and 2008 to present, they are part of the grievance litigation and are not being released to the public. Hearings began in 2011 and are scheduled throughout 2012.
 
 
Random testing brings the TTC, with its 1.6-million riders a day, more in line with public transit services in the United States, where random testing of all workers in the transportation sector is the law. "We are the third largest transit agency in North America after New York and Mexico City, and we feel that this element of the policy is necessary," Ross noted. (WCxKit)
 
 

Windsor's public transit service is the only one in Canada that has implemented random testing, but only for employees who drive routes that cross into Michigan.


Author Robert Elliott
, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@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 workers comp issues.
 
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Drug Company Settled Substandard Allegations with $40 Million Fine

 
GlaxoSmithKline (GSK) agreed to pay $40.75 million to settle allegations it was manufacturing substandard prescription medications in the early 2000s.
 
 
GSK was alleged to have involved in production of substandard products, made from 2001 through 2005 at its former manufacturing facility in Cidra, Puerto Rico. Those included the antidepressant Paxil CR, the anti-infection ointment Bactroban, the sterile anti-nausea medication Kytril, and the type-two diabetes pill Avandamet.(WCxKit)
 
 
The company did not admit to any wrongdoing or liability of any kind under these states’ consumer protection laws in this settlement. According to information from the company, which has offices in the U.S. and Great Britain, GSK chose to settle the matter to avoid the expense and uncertainty of protracted litigation and trial.
 
 
In 2009, GSK closed the plant because of declining demand for the medicines made there. GSK sold the facility in 2010. Prior to selling the facility, the company reportedly brought the plant into compliance and to a level of performance that satisfied both GSK and the FDA.
 
 
According to the company, GSK’s manufacturing division has a strong track record of quality and compliance with current Good Manufacturing Practice (cGMP) requirements. Various regulatory agencies – including the FDA – conduct an average of more than 100 inspections each year at over 80 GSK manufacturing sites located in over 30 countries.(WCxKit)

The FDA has raised no material issues as a result of its other inspections, according to GSK. The fine will be divided among 37 states and the District of Columbia as part of the agreement.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@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 workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Eligible for Workers Comp Despite Smoking Pot

The Montana Supreme Court has thrown its backing behind a Workers Compensation Court ruling that a man who was mauled while feeding the bears at a tourist attraction is eligible for workers comp coverage.
 
 
According to the Associated Press, Brock Hopkins filed a claim with the Uninsured Employers Fund, which denied it due to the fact Hopkins had smoked marijuana prior to entering a bear enclosure at Great Bear Adventures near West Glacier on Nov. 2, 2007. (WCxKit)
 
 
Park owner Russell Kilpatrick claimed that Hopkins was a volunteer and fed the bears after Kilpatrick informed him not to.
 
 
The Workers Compensation Court stated Hopkins was an employee and claimed there was no evidence that impairment from smoking marijuana led to the mauling.
 
 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

Know the Basic Types of Drug Testing

Most employers understand the importance of drug testing to prevent both workers compensation accidents and accidents that damage property. When an employee has a work related accident resulting in injury, a drug test should be a part of the immediate medical care. The reasons and the importance of drug testing are easy to understand. The types of drug test and how they are administered is more technical. 
 
 
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. (WCxKit)
 
 
The most common drug test is the urine drug screen. This typically involves collecting a urine specimen in a cup specifically designed for this purpose. The cup comes with a cap that seals and the cap is taped down with tamper resistant tape. A label with the either the employee's name or a unique number assigned to the employee is used to identify from whom the specimen was obtained. The urine specimen is delivered to the laboratory where it is screened for drugs.
 
 
At the laboratory, the most common drug screen is the one required by the federal government for commercial class drivers licenses. It is referred to as the SAMHSA 5 panel. (SAMHSA – Substance Abuse and Mental Health Services Administration). The five substances tested for are:
 
1.     Cannabinoides (marijuana, hash)
2.     Cocaine (cocaine, crack, benzoylecognine)
3.     Amphetamines (amphetamines, methamphetamines, speed)
4.     Opiates (heroin, opium, codeine, morphine)
5.     Phencyclidine (PCP)
 
 
To perform the testing, the 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 (which means they separate the urine into the various substances within it). The test results are then reviewed by a physician for confirmation of the results. If the test results are negative, the employer is advised the drug test was negative. 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 – for instance a prescription drug.
 
 
A drug test that is more accurate than the testing of urine is a blood test. The blood sample is drawn from the employee, labeled and sent to the laboratory where it is placed in 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 the collection method is considered more intrusive and it is most expensive method of drug testing. However, it is considered the most accurate drug 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 been approved by the courts. Once ingested, cannainoids, 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.
 
 
As most illicit drug users know the urine test and blood test are accurate for only recent use of the illicit drugs, they will often try to delay their drug testing until their body has had an opportunity to eliminate the drugs. Time is not the only factor that determines whether or not the drug test will reflect recent use of an illicit drug. Factors that impact the drug testing include the type of drug used, the body mass, the metabolic rate, the age of the user, the overall health of the user, the amount and frequency of use, and with urine drug test – the urine pH.
 
 
A urine drug test has a longer detection window of time then a blood test. Urine test are accurate for cannabis for a minimum of 3 days and up to 7 days, but up to 30 days for heavy users or users with high body fat. Urine test are accurate for cocaine for a minimum of 2 days and up to 5 days. Urine test are accurate for amphetamines for a minimum of 1 day and up to 5 days (except for methamphetamine, it is accurate for 3 to 15 days). Urine tests are accurate for codeine for 2 to 3 days, heroin 3 to 4 days and for PCP for 3 to 7 days for a single use, but up to 30 days for chronic users of PCP. (WCxKit)
 
 
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 Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website 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.  See www.LowerWC.com . Contact:  RShafer@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 workers comp issues.

©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com.

How to Deal with Severely Injured Workers Who are Addicted to Narcotics

One of the biggest quandaries of the workers’ compensation adjuster is facing  how to deal with the severely injured employee, now addicted to opioids or opiates, better known as narcotics, as a result of injury treatment.

 

Doctors often prescribed narcotics for the acute pain an employee suffers when first injured. Other medications are often ineffective for acute pain and the quickest and easiest way to mitigate the pain is through the use of narcotics. Doctors also often rely on narcotics for the employee with a chronic pain condition.

 

Narcotics are commonly prescribed for short-term relief of pain. However, their use long term may create problems for the employee. A study by the Yale School of Medicine found 24% of the employees with chronic back pain who were given narcotics developed a narcotics abuse problem. The study also reflected narcotics are effective for the short term (less than four months) but their long-term effectiveness was inconclusive.

 

The excessive use of narcotics not only creates a dangerous addiction problem for the employee, but also often results in poor return to work success, extended time off work, and increased cost of the workers’ comp  claim.

 

According to a 2009 study published by the National Council on Compensation Insurance (NCCI) the cost of narcotics is approximately 25% of the total medication cost in workers’ compensation claims. As the  claim gets older, the percentage of the drug cost related to narcotics grows, especially for back injury claims. The NCCI study confirmed the heavy use of narcotics in the treatment of workers’ comp injuries results in addiction and persistent use lasting for years.

 

The overuse of narcotics in the treatment of workers’ compensation injuries has been a problem for years in the workers’ comp industry, and the problem continues to grow. The workers’ comp adjusters, the nurse case managers, and other concerned insurance professional have all dealt with the problem of narcotic abuse. The best overall approach is to work with the doctors to promote the medically necessary and responsible use of narcotics.

 

Several studies suggest what is the best way to handle the use of narcotics in the treatment of workers’ comp injuries. The guidelines being used now by most doctors stress the lowest possible dosages and emphasizing psychological assessments before prescribing narcotics. While most doctors do prescribe the lowest possible dosage with their initial prescription given to the employee, most doctors do not take the time to perform a psychological assessment of the injured employee before prescribing narcotics, especially for the first visit by an injured employee in obvious pain.

 

One approach to the problem of narcotic addiction is for the doctors to establish a specific treatment plan with the start of narcotics. The doctor and the employee agree to the treatment plan and the amount of narcotics the employee will use. The doctor’s office performs either schedule or random urinalysis to verify compliance with the dosages specified in the treatment plan. A drug test let’s the doctor test to make sure the employee is in fact using the drugs prescribed, not selling them on the street. When a person who has been prescribed opiods tests negative the doctor must wonder why the patient is not using the drugs, and whether those drugs have perhaps been used for illegal purposes.


Some doctors
 concerned about the potential for narcotic addiction prescribe physical therapy and aerobic exercises as ways to ease the pain an employee is suffering. While this approach does not have the fast acting results employees often want (and get with narcotics), the side effects are beneficial to the employee. There ARE legitimate purposes for these therapies; many employers feel these therapies are “luxurious” over-the-top fun-time for employees which is normally not the case.

 

Due to the problems associated with narcotic use, some doctors are switching to prescribing a non-narcotic painkiller, Lidoderm delivered via a patch. The problem with Lidoderm is the cost. It is more expensive than the commonly used narcotics — OxyContin, Hydrocodone, and Oxycodone. In the long run, however, it  can be more cost effective then dealing with the employee with a narcotic addiction or an employee who is still in pain but has sold their medication for cash.

 

Another non-narcotic painkiller doctors may use is Celebrex, a nonsteroidal anti-inflammatory, but also costly. With Lidoderm and Celebrex, it is difficult for a patient to switch to them if they already started using narcotics. The employee will claim Lidoderm and Celebrex are ineffective because the patient starts experiencing withdrawal after switching to the non-narcotic painkillers. Neurofeedback can also be effective for treating pain, according to David Dubin, M.D. Neurofeedback helps the patient learn to self-regulate pain.

 

If the employee’s pain is not too severe, it can often be treated with over the counter medications like aspirin, ibuprofen, Aleve,Tylenol. The issue encountered with over the counter medications is the belief by many employees that their pain is unusual and they need something stronger to control it. (workersxzcompxzkit)

 

There is no easy solution to the problem of the overuse of narcotics in the treatment of workers’ comp claims. The nurse case manager and the workers’ comp adjuster need to promote the use of a specific treatment plan with a scheduled end date for the use of narcotics. The nurse case manager and the adjuster also need to  encourage the switch from narcotics to non-narcotic painkillers, combined with physical therapy where appropriate, as early in the treatment process as possible. It is imperative for the adjuster and nurse case manager intervene as much as possible to prevent narcotics addiction.


Author Rebecca Shafer,
 J.D., President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, transportation, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  RShafer@ReduceYourWorkersComp.com  or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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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 workers’ comp issues.


©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

 

Is Random Drug Testing for Public Safety Workers Required

With the Providence, Rhode Island Police Department hit by a drug scandal in its ranks, state Rep. Roberto DaSilva, a Pawtucket Police lieutenant, stated he would like all public safety personnel to undergo random drug tests annually.

 

According to The Call, the East Providence representative notes he wants to bring together the labor unions representing police, firefighters, rescue workers and correctional officers to fashion a system that is “fair to the employees and protects the public.”

 

The Rhode Island affiliate of the American Civil Liberties Union stated it will oppose the bill that DaSilva is likely to introduce.

 

The Fraternal Order of Police lodge representing Providence Police officers rejected Providence Mayor David Cicilline’s request for all police officers in the city to undergo random drug tests. The mayor has since backed off from his demand.

 

According to comments DaSilva made to The Call, “every officer I have talked to, from the highest-ranking officer to the lowest-ranking officer, people from other departments, have given me a positive response.

 

“In fact,” DaSilva noted in a written statement, “they said they would welcome it to prove to members of their communities that they are beyond reproach.”

 

“If you have nothing to hide,” DaSilva commented, “then you should have no problem with this.”

According to DaSilva, the idea behind the random drug tests is to use it as a tool to get an officer who is having trouble with illegal drug use or abuse of controlled substances the assistance he or she needs.

 

One of the officers involved in the Providence scandal allegedly provided information about police activities to his brother, an alleged cocaine dealer. (workersxzcompxzkit)

At the present time, police officers and firefighters are required to submit to drug testing only when they are first hired, according to DaSilva.


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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 workers’ comp issues.

 

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School District Looks at Drug Testing Policy Following Teacher Death

Officials in one  Pennsylvania school district are looking at a wide-ranging drug testing policy for its employees following the death last month of a district teacher. 

According to
  Allentown's Morning Call, officials have shown interest in a policy that would include pre-employment testing of prospective teachers along with administrative and custodial staff and the bus driving corps. They're also are reportedly looking to explore conducting random drug testing of current employees.

In December
,  a high school biology teacher was discovered dead on the bedroom floor of an apartment with several bags of suspected heroin and drug paraphernalia nearby. Her death remains under investigation as the coroner's office awaits the results of toxicology tests before reporting the cause of death.

At the time
,  school officials reported they were unaware of any drug use by the teacher and report no evidence of widespread drug issues among staff. (workersxzcompxzkit)

Any random
 drug testing that would be slated for current staff would likely require approval from the teachers union.

Resource: http://reduceyourworkerscomp.com/drug-testing-state-laws.php

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.

Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/

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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 workers' 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

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

Take Our Free WC IQ Test: http://www.workerscompkit.com/intro/

 

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

 

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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Absenteeism for Time Off for Drug Rehabilitation Not Grounds For Termination

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

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