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MRA – THE MANAGEMENT ASSOCIATION

Sex, Drugs & Rock and Roll

Illinois SHRM

Presented by: Michael HyattDirector, Government Affairs

September 23, 2019


All Rights Reserved. © 2019 MRA | 2

HRServices

TalentManagement

Learning & Organization Development

TotalRewards


Roadmap

1 Shift in Marijuana Laws

Drug Testing 2

3 Policy Considerations

4 What We Learn From our Members

All Rights Reserved. © MRA 20193


Isn’t Low Unemployment a Good Thing?

• Labor shortage

• Talent, Attraction & Retention

• Low unemployment

Illinois UNEMPLOYMENT

4.2%



Opioid Use: Workplace Impact

Annual Costs to employers

$81 Billion

Employees with any substance use disorder

TURNOVER RATE TURNOVER RATE

Employees with opioid use disorder



Not the Typical Stereotype

Source – cdc.gov, nsc.org, kff.org, Waukesha County

Most affected are adults ages

35 to 64

Of abusers hold jobs

Highest rate among service

sector



Source – nsc.org

Absences

Labor

— Lower productivity

• $25.6–$53.4 Billion attributed to lost productivity

— Inconsistent quality

— Employees who misuse opioids are10 times more likely to miss work

• On average 29 days annually

— Annual cost for unplanned absences estimated $660 per employee

Accidents

— Workers’ compensationclaims are 5 timesmore likely

— 40% of all industrial fatalities



Marijuana

Legalization for Recreational and Medical

Use

Changing SocietalViewpoints

• Marijuana is illegal at a federal level and is a Schedule I controlled substance under the Controlled Substances Act (CSA)

• Eleven (11) states and Washington, D.C. have legalized recreational marijuana and 33 had legalized medical marijuana (including MI, IL & MN).



States with Unique Drug Testing Laws



Eleventh state to legalize Marijuana for Recreational Use

The new law will go into effect on January 1, 2020.

Marijuana will become a legal product under Illinois law effective

January 1, 2020.



Overview

Still allowed to maintain “drug free” or "zero tolerance" policies concerning smoking, consumption, storage, or use of cannabis in the workplace so long as

• the rules are applied in a nondiscriminatory manner and

• based on a good-faith belief that an employee is either using, possessing, or is impaired in the workplace.



Medical & Decriminalization Marijuana Law

• The Compassionate Use of Medical Cannabis Act took effect January 1, 2014. – Established a registry program for qualified patients and their

caregivers,

– The law also established cultivation centers and dispensing organizations

– Over 35 qualifying medical conditions.

• In 2016, Illinois decriminalized marijuana possession of 10 grams or less. – Individuals in possession of this small an amount may no longer

be arrested and sent to jail.

– no longer a criminal offense but a civil offense punishable by a fine of between $100-$200.



How Does Your Policy Address…

An employee who initiates asking for help with a substance abuse problem?

An employee who is slurring their words, appears hung-over, high, or over medicated?

An employee who is using alcohol or drugs at work?

Pre-employment drug screening?



Drug Tests

Federal and State specific regulationsAdditional industry regulations

A few different typesUrine | Hair follicle | Blood

Typical employer drug test5 panel urine | Fast, efficient, simple



Federal Drug Testing• Federal law places few limits on employer drug testing:

• Requires testing in several safety-sensitive industries (ex… transportation, aviation)

• Under DOT regulations, Opioid & Marijuana use prohibited for safety-sensitive employees

• Bus drivers and subway operators

• Truck drivers

• Pilots and aircraft maintenance personnel)

• Locomotive engineers

• Ship captains and crews



Drug Testing in Illinois

• Illinois doesn’t require drug testing, nor does it encourage or discourage testing

• It is up to the employers to implement their own drug-free workplace programs

• If you choose to test - a clearly written and well-disseminated drug test policy forms the basis of a successful drug-free workplace program



MRA – THE MANAGEMENT ASSOCIATIONMRA – THE MANAGEMENT ASSOCIATION

Drug Testing in Illinois: State Contracts

• Illinois does require employers with a state grant or contract of $5,000 or more to take specific steps to prevent employees from engaging in the unlawful

– manufacture,

– distribution,

– dispensation,

– possession, or

– use of a controlled substance.



Drug Testing in Illinois: State Contracts

• Drug-free awareness programs required.

• Covered employers must establish a drug-free awareness program to

– inform employees about the dangers of drug abuse in the workplace;

– the grantee's or contractor's policy of maintaining a drug-free workplace;

– any available drug counseling, rehabilitation, and employee assistance programs; and

– the penalties that may be imposed on employees All Rights Reserved. © MRA 201919


Pre-Employment Drug Testingin Illinois

• Employers can test applicants provided they follow state rules against discrimination

• The prohibition on discrimination for using "lawful products," means employers will be limited to reasonable-suspicion drug testing for marijuana



• Employers can no longer decline to hire an applicant because the individual tests positive for marijuana.

• Employers may continue to rely on pre-employment drug tests to decline to hire applicants who test positive for other illegal drugs.


Pre-Employment Drug Testingin Illinois


Drug Testing in Illinois:Current Employees

• Beginning January 1, 2020, Illinois employers may not take disciplinary action or terminate an employee due to the employee’s recreational marijuana use outside of work.

• An employer may discipline or discharge an employee for being under the influence of marijuana while at work.



• Employees who fail or refuse a drug test may terminated

• Although an employee can always refuse a workplace drug test, by doing so, they risk termination


Drug Testing in Illinois:Current Employees


Key Points of a Policy


It’s about maintaining a healthy, safe and productive work environment

Addiction viewed as a treatable condition; corrective vs. punitive

An initial positive test is not cause for termination

Self-initiated efforts to seek help for substance abusewill not jeopardize an employee’s job

No duty to reasonably accommodate illegal drug use

May not use, possess or be under the influence of alcohol or drugs at work

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Roadblocks to Conducting Testing

Lack of confidence and know-how

Personal attitudes and beliefs toward drug and alcohol use and abuse

Your personal experience with alcohol and drugs

Your relationship with the employee: role of friend, boss, adversary




What Is Reasonable Suspicion?

• Reasonable concern that drug/alcohol usage may have been a factor in an accident involving our employee(s)

• Unusual appearance, behavior or speech

• The sustained decrease in job performance

• The smell of drugs/alcohol emanatingfrom the employee

• Uncharacteristic personality changes, emotional outbursts, mood swings, irritability, disorientation or irrational behavior




Executing Reasonable Suspicion Testing




What To Do With An Impaired Employee

• Immediately protect the employee and others from safety risks

• Take possession of any suspected contraband(do not use force)

• Escort the employee to a private office or space

• If possible, have a second supervisor who has been trained in reasonable suspicion observe the employee to help decide whether or not to test




If The Decision Is To Test




Refusal to Test




How Are Opioids Classified?

Source – cdc.gov

Natural

• Morphine• Codeine

Semi-synthetic

• Oxycodone• Hydrocodone

Synthetic

• Tramadol • Methadone• Fentanyl



Testing for Synthetic Opioids

Source: cdc.gov, nsc.org, kff.org, Waukesha County

Employer drug tests often do not test forsynthetic opioids, which are the most

commonly abused opioids



What’s on the Tests?

Amphetamines

Marijuana

Cocaine

Heroin

Phencyclidine

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Which Opioids are Detectedon a 5-Panel Screen• All naturally occurring opioids (opiates)

• Some semi-synthetic opioids (esp. at high levels)

• No synthetic opioids

Yes MaybePossibly but probably not

No

MorphineHydrocodone

(Vicodin)Oxycodone

(Oxycontin, Percocet)Fentanyl

(Duragesic)

CodeineHydromorphone

(Dilaudid)Oxymorphone

(Opana)Methadone

HeroinNaloxone(Narcan)

Buprenorphine



What’s Not On The Tests?

• The typical 5 panel drug test does not screen for:

– semi-synthetic opioids, such as oxycodone and hydrocodone

– Synthetic opioids, such as fentanyl and oxycodone

• Which are some of the most abused prescription opioids




Test Results

A Medical Review Officer (MRO) will consult with the

individual regarding a

positive outcome

If ruled positive, the MRO will

contact you after informing the

employee

Employee is advised of next

steps by HR or his manager

Employee should sign and comply with a Letter of Understanding



The Letter of Understanding

Signed Release of Information

Evaluation conducted by a Substance Abuse Professional

Complete All Recommendations

Pass Return-to-Work Drug/Alcohol Test

Unannounced Follow-up Tests for 24 Months



Recommendations for Better Testing


Work With Testing Facility

Order drug screens with more panels

such as 7, 10, or 12 panels

• Increases the chances of

detecting opioids

Order customdrug screens

Conduct random drug tests more

frequently – safety sensitive positions


What We Learn from Members ✓Removing marijuana from the drug screen or eliminating drug

testing altogether

✓ Instituting separate test procedures for office employees vs. production employees

✓Keeping their drug test in-tact, but “overlooking” positive marijuana results

✓Keeping their drug test in-tact, but issuing a last chance agreement when hiring someone whose pre-employment results were positive for marijuana

✓Once candidates realize an employer doesn’t screen for marijuana, they tell their friends. Word travels…employers may end up hiring from a pool that uses illegal drugs

✓Employers that eliminated marijuana have reinstituted their test 6-12 months later due to the quality of hire



What Else Are Employers Doing About It?



10 Steps in Creating a D&A Policy

Explain the company’s purpose/reasons for instituting.1

Define prohibited conduct.2

Describe circumstances that will trigger testing.3

1. Determine the testing methodology that will be used.4

Determine what substances will be tested.5



10 Steps in Creating a D&A Policy

Define the ramifications of a positive result.6

Define the ramifications of the initial positive result.7

Review policy draft with legal counsel and establish an effective date.

8

Review final policy with supervisory staff prior to implementation and train them.

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Establish and communicate detailed procedures for HR.10



The New Reality

Employers may continue to:

• Prohibit marijuana use and possession at work.

• Prohibit reporting to work impaired or under the influence of marijuana.

• Prohibit the use of marijuana while on-call - employee must be scheduled with at least 24 hours’ notice to be on “stand by.”

• Discipline or discharge employees if you possesses a “good faith” basis that the employee is under the influence while at work or on-call, as long as you have a clear policy



The New Reality

Review job descriptions and make it clear which positions are safety

sensitive (could be all)

If you have not already, establish a drug-free requirement for safety-

sensitive positions.

Policies on drug use and testing should set forth clear definitions on items such as “marijuana,” “cannabis,”

“medical marijuana,” “recreational use,” “off-duty,” “under the influence,” “impaired,” or any other terms used in

the policy.

Consult with legal counsel to ensure your policies are compliant with

applicable federal and state laws.



The New Reality Unless you required to maintain

more stringent policies – (e.x DOT regulations or contract

requirements) - employers should remove policies that decline to hire or discipline employees for

off-the-clock cannabis use.

Review and update your accident investigation policies to ensure

investigations will include an assessment of symptoms that may

demonstrate drug use.

Train managers on how to identify signs of impairment and how to document their observations.

Implement a process for employees who have been

disciplined for suspected cannabis use to challenge the decision.



QUESTIONS

COMMENTS



Manage heightened employee awareness1

Review current policies and procedures 2

Facilitate proper training and informational sessions3

Be an advocate for the organization4

Take all complaints seriously and investigate thoroughly5

Roadmap



What Is Not Harassment?




Harassment Often Occurs When There Is A Disparity Of Power




Why You Should Care

Avoid/counter bad publicity: consistently addressing

complaints shows that the company cares about its

employees and bolsters the company’s reputation

Protect your company from lawsuits: showing that your company took action right away can potentially mitigate company liability



Why Not?

Don’t see behavior as

problem

Don’t know how to handle

Too Busy to address

Don’t like or believe

employee

Don’t like conflict

Relationship with party involved


Why Not Investigating?


Proactive Leadership

Set the tone of what is acceptable

Strong, comprehensive policies

Trusted, accessible & accountable

Regular, interactive, and tailored training



Harassment Policy

Elements of Policy

Key Elements of PolicyDiscrimination/harassment free workplace

Examples of inappropriate conductSexual harassment examples

Reporting channelsSupervisor reporting expectations

Investigation processDisciplinary action



Policy Recommendations

1 Distribute and explain policies at time of hire

2 Keep policies on Intranet

3Establish processes for reporting, investigating and resolving complaints.

4Don’t require employees to first confront the alleged harasser directly.



Disrupting Your Training

1 Change the “checking a box” mindset

Focus less on legal jargon and more on behavior2

3 Not “one and done”

4 Keep it interactive

5 All-company event



Investigations vs Reviews:Practical Guidance

Investigation: If, after initial intake, you feel the issue may violate company policy and had to interview one or more employees

• Do not disregard an employee’s verbal complaint.

• Employer can ask that an employee put the details in writing.

• Never decline to investigate until an employee puts the complaint in writing.

Workplace Review: If, after initial intake, you only had to advise the employee or get background information from the manager or review documents



Triggers of a Harassment Investigation

An investigation should be commenced whenevera harassment complaint is made

• Complaint need not be written or use “magic words”

An investigation should also be commenced in the absence of a complaint if:

• The employer becomes aware of information that creates a reasonable suspicion that harassment has occurred



How ALL leaders respond to inappropriate conduct will be

considered HR’s response.

Legal Agent and Human Resources



Dealing with Harassment Issues Requires Judgment Calls

Every situation is different

Often there will be conflicting stories and no clear answers about what happened and what you should do

You’ll have to decide which problems merit acloser look, whom to interview and what documentsto review

When your investigation is complete, you’ll have to decide what you think really happened



Stages Of An InvestigationEmployer

Awareness

Meet with the Complainant & Assess the Complaint

Plan – including who should conduct the Investigation

InterviewWeigh the Evidence

Draft a report & make

recommendations

Communicate to Parties Involved

Maintain Files



Consider Bringing in Outside Help If…

More than one employee complains about the same serious problem(s)

Accused is a high-ranking person in the company

Complainant publicized the complaint in the workplace or in the media

Complainant hired a lawyer, filed a lawsuit or filed charges

No one is available to investigate complaint fairly and objectively



Remember Your Role

You are acting on behalf of the company

When you investigate …

Unable to put your personal feelings aside?

• Hire outside investigator

• Ask a manager who has been TRAINED

Seek advise from legal counsel

If you feel you need guidance and support



Severity of the conduct

Previous discipline of this employee

Any mitigating circumstances

Length of service

Past handling of similar situations with others

Seek counsel if necessary

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What Should You Recommend?


Disciplinary action

Demotion

Termination

Move employees to different departments

Develop and implement new policies

Provide workforce training

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Apology13

Mediation 14



QUESTIONS

COMMENTS


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