More states legalized marijuana in the last election, with the states of California, Nevada, Maine and Massachusetts, joining early adopters Washington, Oregon, Alaska and Colorado in legalizing adult recreational marijuana. Washington, DC also legalized the use in 2015.
In addition many states expanded or voted to approve the use of medical marijuana. According to the Marijuana Policy Project, a pro-legalization group, medical marijuana is legal in 29 states and Washington, D.C., Puerto Rico and Guam. More states are expected to vote in favor of legalized marijuana in 2017.
According to Tamara Cagney, the president of the Employee Assistance Professionals Association, the important focus for Employee Assistance professionals is that marijuana remains a Schedule I drug under the Federal Controlled Substances Act, which means that it is neither lawful to use or possess as a matter of federal law. None of these new legalization efforts aim to change state employment law, employers in the affected states will no doubt be faced with a chorus of questions about how the changes will affect enforcement of their workplace substance abuse policies. If you have concerns about how this impacts your company policies, contact an employment attorney with knowledge about drug testing policies.
If you are a current client with employees who test positive, the EAP can help with a Return to Work Agreement, assessing and referring employees for treatment if needed, and monitoring them for up to two years. If you would like more information about drug testing in general, contact us at 1-800-648-5834 or locally at 425-454-3003.
It is very difficult for small employers to obtain quality, personalized EAP services because the majority of Employee Assistance Programs cater to the larger employer.
We have developed a program to assist very small employers (10-25 employees). For one low flat rate, we will provide one (1) face to face counseling session for clients who reside within the Puget Sound, WA area. If clients are outside our local area, we will provide a comprehensive telephone assessment with one of our in-house professionally trained EAP staff members. We also provide unlimited management consultations, telephone counseling and support to employees and their dependents and access to our password protected website. Our comprehensive website includes self-assessment tests, articles, resources, newsletters and much more.
The cost of this program is very minimal and can provide peace of mind to employers who have concerns about how to handle difficult employees or situations. It is always more cost effective to help current employees than to replace, recruit and retrain a new one.
If you have employees with:
We can help! The EAP can increase employee loyalty and performance. It will improve your company’s bottom line with reduced health care costs, workers’ compensation claims and reduced absenteeism and turnover.
Because we do all the EAP work ourselves, we get to know the key players within our clients companies and we understand the company culture. If you are a small business owner, you have may have questions about how to handle difficult employees and may need a professional to consult with about a certain employee or problematic employment situations. We can advise you on assisting employees with personal and or performance related issues.
If your company is too small for your own HR staff, we can refer you to our Human Resource partner who can provide you with some of the following:
If warranted, we can also refer you to employment attorneys and we will provide ongoing case management with difficult situations.
Examples if situations where we can help small business are:
1. A long term employee died over the weekend. Since the group of 12 co-workers had worked with this individual for many years, they were all very upset and had a tough time getting their work done. In addition, this employee had a specialized position that no one else could do. Our EAP provided a critical incident debriefing to the whole company to help them process their reactions and grief. We met with the company owner to allow her to process her grief, to help her plan a memorial for the employee and to make plans to replace the position that was difficult to fill.
2. An employee tested positive for drugs after a pretty serious workplace accident. We were able to provide an initial drug and aclohol assessment and then referred him to a treatment agency where he was able and willing to enroll in so that he could keep his job. We assisted the employer with a return to work agreement and monitored the employee’s progress in treatment. We have been following up with him for the past year and he has remained clean and sober and is thankful that his employer offered the EAP for help.
3. A long-term highly skilled supervisor had been accused of harassing and intimidating a subordinate. The subordinate employee complained to management. In the course of the investigation, the employee informed management that two previous employees had left because of this supervisor. The supervisor was very hesistant to reprimand the supervisor because his position was so difficult to replace. We consulted with management, helped them document the issues and they referred the employee to the EAP as a management referral. We referred the employer to our HR partner for one on one harassment training with the supervisor and she assisted the employee and employer with a performance improvement plan. We also provided support to the subordinate employee.
For more information about how we can help your small business, contact us at email@example.com
On November 6, 2012, Washington state voters passed Initiative 502 which regulates and taxes sales of small amounts of marijuana for adults. Under the soon-to-be implemented Washington state law, adults in the state may now possess up to an ounce of marijuana, 16 ounces of marijuana products and 72 ounces of liquid infused marijuana products. The initiative passed with a 55 to 45 percent margin.
Because of the obvious conflict between the federal Controlled Substance Abuse Act and the new Washington and Colorado laws, we can expect more developments shortly as these newly authorized state-regulated marijuana markets begin to take shape. Although the Administration (e.g., the Attorney General, etc.) remained silent on the marijuana-legalization initiative throughout the election cycle, it has opposed legalization in the past.
A legal challenge to the Washington and Colorado laws is expected.
How does this affect employers? Neither initiative changes the ability of employers to maintain their current employment policies, nor does it prevent them from creating whatever policies they see fit. If employers do not currently allow off-site marijuana use by employees, they can continue to prohibit it. Neither requires employers to accommodate the use of marijuana by their employees. A recent Washington State Supreme Court decision, Roe v. Teletech, clearly stated that Washington State employers didn’t even have to accommodate workers with a doctor’s authorization to use marijuana under Washington’s Medical Use of Marijuana Act (MUMA).
Does this affect your current drug testing policy? No. The drug testing that your company and millions of employers around the world have been doing for decades was never based on the assumption that the user was doing something illegal under a criminal law – instead it has always been based on SAFETY and the efficiency of your workforce. No one who has failed an employment drug test has been reported to the police or charged criminally. Nothing changes after I-502 or Amendment 64 as far as workplace drug testing. You may be interested in reading this synopsis and legal review “Don’t Fear The Reefer: Legalization of Marijuana To Have Little Effect on WA Employers”
Here are some additional reasons why you should continue prohibiting the use of marijuana and continue drug testing for marijuana (THC):
1. If you are subject to the federal drug testing requirements – nothing has changed. The Dept. of Transportation, Department of Defense, Department of Energy drug testing programs still require that you prohibit the use of marijuana and continue to test for marijuana.
2. If you have or want to be eligible to receive federal contracts or grants, the Drug-Free Workplace Act of 1988 still applies to you – and this includes most state and local government agencies, school districts, etc. This Act requires that your written policy must prohibit ALL illicit drug use as defined by the federal Controlled Substance Act. There is no exception for “medical marijuana” or any other marijuana use. The Drug-Free Schools and Communities Act of 1989, declares that colleges or schools that allow illegal drugs on campus face the possibility of losing federal funding. Many different states have similar laws which will apply to you if you want to work or do business in those states.
3. Smoking pot doubles the risk of serious crashes.”Cannabis consumption – Motor Vehicle Collision Risk”
4. Because you are concerned about liability and risk management, you are probably aware of various courts and Supreme Court decisions that say an “employer can be held liable in such cases if it failed a duty to prevent foreseeable injury”. So, since everyone knows that marijuana use can severely impair, if you allow these people to work at your company or on your job sites, expect to be held responsible for injuries, accidents, and deaths that they cause – basically it’s the same logic as to why you don’t let someone work under the influence of alcohol, even though alcohol is a legal drug.
Every employer should have a drug and alcohol policy. The responsibility to provide a safe workplace and the potential liability from negligent hiring and retention require that employers be aware of and take steps to control work-related substance abuse. The components of a drug-free workplace program, especially drug testing of employees, may raise legal issues with a risk of legal liability if conducted improperly or in violation of federal, state or local laws. Recommendations given are intended to provide reasonably accurate and authoritative information in regard to the subject matter covered. It is furnished with the understanding that we are not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
This article was written reprinted with permission by Tom Pool, Executive Director, Drug Free Business. If you would like more information about drug testing, please contact me at firstname.lastname@example.org
All employers know that employee absenteeism is a big problem. It reduces productivity, morale and the company bottom line. The ever present challenge is how employers can prevent and reduce absenteeism. CCH, a leading provider of human resources and employment law information (hr.cch.com) conducted an unscheduled absence survey in 2005 and found that the average per employee cost of absenteeism is $660 with some larger companies losing more than $1 million per year. What is of great concern to employers is that almost two out of three employees who call in sick are not physically sick. Personal illness accounted for only 35 percent of unscheduled absences and 65% were due to other reasons including family issues (21 percent), personal needs (18 percent) entitlement mentality (14 percent) and stress (12 percent).
Companies with low morale saw higher rates and costs of unscheduled absences. 78% of human resource managers feel that the main cause of absenteeism is the belief that those who skip out of work believe they are entitled to time off. The other reason cited by human resource managers is a lack of supervisor involvement as a catalyst to discourage employee absenteeism. When managers understand the causes of absenteeism and use the EAP as a resource for assisting employees, they can play a big role in reducing absenteeism.
When employees are faced with stressful everyday life situations, it has an impact on their ability to be present in their jobs. Stressful situations include family and relationship problems, physical illness, addictions, financial difficulties including foreclosure, bankruptcy, identity theft, debt and unemployment by a spouse. If employees have a confidential, employer sponsored way (the EAP) to obtain assistance with these difficulties, they are more likely to address their problems earlier and resolve them quicker. Additional worklife and wellness programs as part of the EAP can be very helpful for employees trying to manage the stress of balancing work and family issues.
The EAP can also train managers on how to recognize and identify personal problems before they have begun to effect performance. When managers can coach employees on how to use the EAP, they stay out of the middle of their personal problems, while still offering a way to get help. Once personal problems have begun to effect performance or absenteeism, they can refer the employee to the EAP as a supervisor referral for peformance based issues. In addition, when employees know they are valued and given a free, confidential resource to address their personal problems, they feel appreciated by and more loyal to their employer.
Employers should also create incentive programs that can improve both attitude and attendance rates. This works for several reasons. Some employees may lack the internal motivation necessary to keep their spirits up and give them the drive and desire to show up to work every day. These people may need the external motivation that incentives provide.
Additionally, incentives tend to promote certain goals, which can be beneficial for employees with attendance problems. The company can create an incentive program that is specifically linked to attendance. Examples of this type of program include:
1) The ability to cash-in unused sick days at the end of a specific period
2) Allowing employees to leave early one Friday per month of perfect attendance
3) Bonus pay for periods of perfect attendance
4) Gifts such as savings bonds or gift cards for periods of perfect attendance
5) Paid time off programs which allow for personal issues, vacation and sick time all in one bank of hours so employees can use what they need when needed.
Of course employers do need to be clear with employees that if they are legitimately sick, they should stay home so that no one else at work gets sick and so they can take the time they need to get better. When the workplace culture is one that does not allow people to be ill, then it will create resentment and poor morale.
Do you have any good suggestions for preventing absenteeism? If so, we would love to hear your ideas.
Fully Effective Employees offers assistance with drug testing, management training and consultation, and confidential assistance to employees and their families with personal and work related problems.
Many employers may see their Workers’ Compensation premiums increase for 2012. Fully Effective Employees, employee assistance program can help employers reduce their liability while preventing expensive claims and reducing the amount of time an employee is off work. Prevention is key- offering support to employees and awareness for employers of the causes of increased WC claims will go a long way to reduce costs. Behavioral risk factors including, attendance, performance issues, depression and drug and alcohol abuse are all known to be associated with workplace accidents, injuries and even fatalities.
The first step employers can take is to provide a drug testing program. Research shows that employees who are under the influence of drugs or alcohol are 3.6 times more likely to be involved in on the job accidents and 5 times more likely to injure themselves or someone else. They are also five times more likely to file a worker’s compensation claim.
When employees are impaired, their judgment, response time and reflexes are also impaired. Letting all employees know that your company will be conducting pre-employment, random and post-accident drug testing will discourage drug users from working for you. Over the years, we have found that the companies with the highest compensation rates are the ones that don’t drug test. Obviously, more drug users work for companies that don’t drug test.
Next, employers should use their EAP to help all employees who test positive for drugs. The EAP can assess the client, refer him for treatment if indicated, and monitor his progress in treatment. The EAP will continue to provide support once treatment has been completed when he is at the greatest risk for relapse.
Employers could also refer all employees to the EAP when they are injured. The client can choose to confidentially discuss issues related to the injury, including relationship and communication issues with co-workers and family members. The EAP counselor can assess whether there are pre-existing issues or if the employee is at risk for malingering, depression, or drug abuse due to prescription medication or untreated substance abuse issues that occured prior to the claim. The EAP counselor can assist the employee with a return to work plan, preparing him or her for a change in job function or an adjustment to work as soon as possible. The result of working with the EAP is that injured employees may be more likely to return to work sooner and be less likely to abuse the WC benefits. The EAP would also provide follow up and support to the worker after he has returned to work.
The back to work plan is essential. Supervisors should be encouraged to avoid conflicts with employees via telephone or by email with injured workers. Research has shown that supervisor and co-worker conflicts figure prominently in increased injury recovery times and protracted absenteeism of injured workers. In addition, a zero tolerance policy should be implemented for harassing employees on light duty. If a medical doctor has approved an employee to return to work on light duty, co-workers should not be permitted to guilt, influence or intimidate a recovering worker to participate in unapproved work activities. (www.workexcel.net)
Our staff at Fully Effective Employees will meet with your company safety or human resources manager to discuss the role the EAP can play in helping you to prevent and reduce your WC claims. We can discuss your risk exposure, safety plans, training, and assist with a drug testing program. These services are all part of our program to provide both an employee and employer assistance program. Once you have implemented this plan, you should be able to provide evidence of your program to prevent and reduce WC claims ,which should result in lower rates for the following year. The added bonus is a safer workplace and healthier, happier or more loyal employees.
A couple of months ago, Fully Effctive Employees held a free one hour seminar on Medical Marijuana and the Workplace in Bellevue, Washington. We invited guest speaker, Laurie Johnston, an employment attorney and partner at Gordon and Rees, P.S. to speak about the State law which was passed by the Supreme Court of Washington in June 2011, referring to the Medical Use of Marijuana Act (“MUMA”). MUMA does not require private employers to accommodate an employee’s off site use of medical marijuana. The Court further held that MUMA does not create a public policy that would support a claim for wrongful discharge. What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes.
What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes. While medical marijuana is readily available and many
employees are using this option to argue the cause for a positive drug test, it is still an illegal drug according to Federal law and if an employer does have a drug testing policy, the employer is not required to accommodate for this drug. There is no legal prescription for medical marijuana- a letter from a doctor or what is commonly referred to as a “green card” just states that an individual can use a certain amount for a particular diagnosis which can range from chronic, severe pain to minor skin ailments or anxiety. Marijuana is not approved by the FDA because it cannot be regulated and the carcinogens from the smoke and other additives cannot be evaluated as medically safe.
Laurie Johnston advises that it is wise to treat all employees the same, regardless of whether or not they work in a safety sensitive position. If an employee who works in a “safety sensitive position” tests positive for marijuana due to “medical reasons” refuses to cease use, an employer should treat him that same as someone in a desk job, even though safety may not be an issue. Ms. Johnston pointed out that if the employer asks the employee in the desk job to run an errand during company time and that person gets into an accident and it can be proved he has marijuana in his system, there could be liability for the employer. In addition, there may be other protected class or discrimination claims. Ms. Johnston recommends that if an employer chooses to keep an individual who uses medical marijuana solely because the position he works in is not a safety risk, there should be clear policy and documentation to that effect. The employer may be subjecting itself to increased risk and the potential for lawsuits by other employees.
It should be noted that marijuana stays in a person’s system for a long time and someone who has been using it for a while may have to be off of work for up to thirty days until it no longer shows on a drug test. Due to the cut-off levels that the lab uses, trace amounts of the drug can show up but not be considered a positive drug test, therefore “passive inhalation” or second hand smoke would not create a positive drug test. In addition, if the employer is using a SAMSHA certified lab (which they should use) rather than instant tests purchased on line or at a drug store, any substance that one ingests to “pass the test” will result in an “adulterated” sample which would be considered a positive. This is no way to “beat” a drug test if the test is done properly.
While there may be legitimate situations in which medical marijuana is an appropriate option for a physically ill person such as someone who is suffering from a terminal disease or severe pain. In these situations, the person would not be in the workforce or causing a safety risk to himself or others. If employers choose to drug test, they should be aware that they will eventually have an employee who tests positive for medical marijuana and a clear policy and training of all personnel is vital.
We will disucss how the EAP works with employees who test positive for drugs in another post. Stay tuned!
If you have questions about drug testing in your workplace, feel free to contact us.
In addition to providing a service to assist employees and their families with personal and work problems, we are also an employer assistance program. We offer coaching and assistance to employers when they are faced with difficult employee situations. I will be posting some of the questions we are asked most frequently and invite our readers to post their thoughts, questions and discussions on this blog.
Q: I am a supervisor myself, but am having difficulty trusting
management. Can the EAP Program assist
me? I feel like I have nowhere to turn.
A: Our EAP makes your confidentiality our utmost
priority. We offer professional, non judgmental short-term assistance for employers and employees alike.
We will never disclose our conversations with you to any outside source without
your written permission, unless it is an emergency situation, or if you are at
risk to harm yourself, or someone else.
Whether you are contacting us for a personal problem or a work related issue, we can help.
Even if you have referred employees to us in the past, be assured that we can help you as well.
Our company specializes in offering both an employer and employee assistance program, enabling supervisors and managers alike to get the much
needed support that they deserve, when dealing with the complexities and
challenges that a leadership role can demand. Your EAP counselor can assist you
in trouble-shooting and role-playing certain scenarios that may be perplexing,
offer education and guidance, as well as find useful and current resources for
you, that are available to you in your geographic area. The EAP is in place so that you, as someone
in a leadership role, never has to feel like there is nowhere to turn!
Q: What is the proper criteria for referring an employee for a “reasonable suspicion”
A: There are five
fundamental elements to consider when requiring a “reasonable suspicion” drug
test. First, it is always important to keep your observational
skills keen, sharp, and well educated. Second, it is imperative to take an
immediate, proactive role in making the referral, because employee SAFETY is an
employer’s primary concern. Third, ALWAYS document any suspicious activity or
behavior on the part of any employee in question. Fourth, review your company’s
drug and alcohol policy, to determine your company’s specific guidelines and
protocol, then act accordingly. Finally, after reviewing all of the information
and documentation available, consult as needed with administration, and Human
Resources, and contact your EAP program. It is important to communicate
your suspicion to the employee in a private and confidential manner. NEVER
allow the employee to drive himself to the drug testing site, because his judgment may be impaired, casuing a serious safety risk.
Company follow through is vital, and remember: your job is NOT to diagnose substance abuse problems. Instead, refer the employee to the EAP
Program, as part of a Last Chance Agreement so the employee can find the resources and the proper help that he or
she may need.
Many managers have had an employee or supervisor come to them to share that they suspect a co-worker may be “under the influence” or report that a co-worker smells of alcohol. When this happens, the manager must act immediately by documenting the observations of the reporting employee. Specifics such as what the person saw, smelled or heard. Only facts should be recorded suchs as ” Sally smelled like alcohol and was slurring her words” rather than “Sally was drunk as a skunk”.
The manager should observe the employee right away and preferably with another party. If the manager is not in the same location, then he or she should make arrangements to have one or two other managers observe the employee and document what they saw. If the manager also observes the employee to appear to be impaired or smelling of alcohol, the employee should be met with immediately. If your company has an HR department, your HR manager should also be involved in the meeting.
It is important during this meeting to stick to the facts and remember that if someone is under the influence of a mood altering substance, their judgement and mood will be impaired. This is not the time to get into discipline or consequences but to ensure the safety of the employee and fellow co-workers as well as to dertermine if there is a violation of company policy. Whether the employee admits or denies being under the influence, the employer should send the employee for a drug test or breath test for documentation purposes. A manager should drive the employee to the testing facility and make arrangements for him or her to arrive home safely from the testing facility after the test and for the remainder of the work shift. When you receive the test results, you shoudl review them with the employee, discuss discplinary action and make a referral to the employee assistance program. If you have a drug testing policy, you can provide the employee with a Last Chance Agreement which will require an assessment by the EAP, and follow through with EAP recommendations.
If you do not have a drug testing policy, you can still refer the employee to the EAP, remove him or her from work and require a medical assessment or drug test but it would be wise to consult with your attorney if you have concerns.
Remember, it is very important to never diagnose or assume. We once had an employee who arrived at work smelling like alcohol and behaving irraticaly. After being referred for a drug test and then a medical evaluation, it was determined that he had undiagnosed, severe diabetes and he was on his way to a diabetic coma . The test and referral to the EAP actually saved his life.
The EAP counselors cannot reveal any personal information without the employee’s written consent but the counselor will let you know if the employee is compliant.
Reasonable suspicion drug testing can be a very stressful experience for a manager. If you are unsure how to proceed, call the EAP for guidance.
The national average for a failed drug test is between 4-6%. While some of the excuses are indeed legitimate, more times than not, the excuses while feeble, can be very humorous. Here is a list of some of the excuses we have heard over the years:
While these excuses may be funny, drug use at work is a serious issue. Employees who are under the influence of mind altering substances can cost employers significant amounts of money in accidents, injuries, errors, absenteeism, tardiness, poor performance and more.
The EAP can help.
Rather than listening to an employee’s story about why his or her drug test was positive, refer the employee to us for a comprehensive assessment and return to work plan. Our goal is to help employees keep their jobs, while remaining drug free and to assist employers in maintaining a safe, healthy and productive workplace.
Employers who don’t drug or alcohol test cannot prove that an employee’s injury was caused by his intoxication if a drug test is not offered.
In the case of McKinley v. Klein Steel, Inc., No. 09-CA-930 (La.Ct. App. 03.23.10), the Louisiana Court of Appeal upheld the award of temporary total disability benefits, attorney’s fees and penalties.
The summary: while carrying a stair railing at work, the employee stumbled and hit his head. The employer sent him to a nearby hospital where he was treated for a scalp laceration and released without a drug test and the employer made no effort to have him tested. He later underwent two spinal surgeries as a result of the accident. The employer’s insurer refused to pay workers’ compensation benefits, claiming the employee was intoxicated at the time of the accident, that he refused a drug test and provided false information to the hospital. The Court of Appeals upheld the award of benefits, finding that the employer failed to reasonably controvert the claim. It also awarded the employee penalties and attorney’s fees.
The court explained that a presumtion of intoxication arises when an employee affirmatively refuses a drug test. But because the hospital never offered a drug test, and one was never required by the employer, there was no opportunity for the employee to refuse one, nor was any other evidence of intoxication presented. The court also rejected the contention that the employee gave false information to the hospital to prevent them from verifying his workers’ compensation status. The employee correctly identified his employer to hospital staff but gave the incorrect contact name and number for the employer, being unaware that the individual no longer worked for the employer. Source: www.riskandinsurance.com
This court case emphasizes how important it is to have a drug testing policy which also includes post accident testing. If the employer could prove the employee was in fact intoxicated, they would have saved a lot of money.