Thursday, May 25, 2017

Workplace Drug Use News

Where are we going?

Every year, Quest Diagnostics, a leading provider of pre-employment, random, post-accident and reasonable cause workplace drug screening, issues its report on the trends of positive illegal drug test results in the workplace.

The Quest Diagnostics Drug Testing Index reveals some alarming data. Illicit drug use in the American workforce, has reached the highest positivity rate in 12 years. Quest compiled this number from an analysis of more than ten million workforce drug test results.

4.2% of the workforce and covers the board spectrum of drugs – marijuana, cocaine, methamphetamines, etc. This is the highest rate since 2004.

Marijuana use continues to rise in safety-sensitive jobs that require drug testing under federal law—like truck drivers and pilots—as well as in the general workforce, according to the Quest study.

In Colorado and Washington, where recreational use of marijuana was legalized, the overall urine-test positivity rate surpassed the national average in 2016.

Since this rate is increasing across the board – not just in states where it’s legal, it strongly suggests a change in attitude more than a change in the laws, as the report states. 
Our more lax attitude about illicit drug use in general, and marijuana use specifically, has had some significant and negative effects. A Denver, Colorado grocery supplier, McLane, employs forklift drivers who load heavy boxes into trucks. McLane employees need to stay alert and operate in a safe manner. But the company is having difficulty hiring since a large number of prospective employees fail the drug screen.

"Some weeks this year, 90 percent of applicants would test positive for something," ruling them out for the job, said Laura Stephens, a human resources manager for the company. "Finding people to fill jobs," Stephens said, "is really challenging." She stated that they saw a huge spike in positive tests after pot became legal. No small wonder.

Think about that for a beat – 90% of their applicants failed the drug screen. 
As the Quest study notes, the positivity rate for cocaine use rose as well. This is the fourth consecutive year in the general U.S. workforce and for the second consecutive year for safety-sensitive jobs that require drug testing under federal law. Post-accident urine tests showed cocaine use twice as often as pre-employment drug tests.

Positive drug-test results for amphetamines—including methamphetamine—also continue to increase.

"Although methamphetamine positivity in urine testing declined between 2005 and 2008, the positivity rate plateaued between 2008 and 2012, and has increased steadily since," according to a Quest press release. Furthermore, between 2012 and 2016, the positivity rate climbed 64 percent in the general U.S. workforce.
While federal law still prohibits illicit drug use, and controls medical use of certain drugs, for truck and school bus drivers as examples, states legalizing marijuana often don’t adequately consider workplace issues around drug use. 

Recently, however, Arkansas made some positive moves in this area concerning medical marijuana use and the workplace. Among the provisions now codified in Arkansas law are:
  • Clarifying that certifying an individual as a qualifying patient "is not a medical prescription."
  • An employer cannot be sued under the MCA if acting in accordance with a drug-free workplace program or policy.
  • An employer cannot be sued under the MCA if acting on a "good faith belief" that marijuana was possessed or used on the premises of the employer or during the hours of employment. "Good faith belief" is separately defined and examples are provided.
  • An employer cannot be sued under the MCA if acting on a "good faith belief" that the employee or applicant was "under the influence" of marijuana while on the premises of the employer or during the hours of employment. "Under the influence" is separately defined and examples are provided.
  • An employer cannot be sued under the MCA if excluding or removing an employee or applicant from a "safety sensitive position" based on the employer's good faith belief that he or she was engaged in the current use of marijuana. Generally, a positive drug test for marijuana cannot provide the sole basis for a good faith belief.
  • Individuals (e.g., managers, supervisors, etc.) cannot be individually sued under the MCA.
More attention needs to be paid to the "unintended" consequences of efforts to end the war on drugs. While I think most of us can get behind the idea of not punishing illegal drug users with lengthy prison sentences, we can’t go so far to endanger lives and our economy in the process. If companies can’t find sober applicants to fill necessary jobs, fewer drug users in prison won’t help us much. If we’re going to legalize the use of mind-altering drugs, including allowing their use in the workplace, are we going to simply forgive and forget when an impaired employee injures or kills someone?

Thursday, May 4, 2017

House Passes Comp Time Bill

Let the games begin…..

So, again, there is an attempt to offer private-sector employees something that public-sector employees (local, state and federal government employees) have always had: the ability to receive compensation for overtime in time off rather than cash (wages). And again, there are those who disagree strongly. Nothing unusual there; although that opposition again presents itself in some pretty ugly ways. Specifically, the provisions of this offering are often misrepresented, or are even flat-out presented falsely.

What are we talking about? Here are two articles that give you the gist of the bill. One from NBC News and one from The Hill. Basically, the bill would allow private sector employers to offer their hourly, non-exempt employees the choice of receiving time and one-half pay for hours worked over 40 in a workweek, or receive the same amount in time off – or "compensatory time". It is completely voluntary, must be agreed to before the work is performed, and the agreement can be revoked by the employee at any time. Those are the basics.

Opponents are saying that it will allow for the employer to coerce employees into accepting time-off vs. pay for overtime worked, and that it delays their receipt of the compensation since the employer can dictate when time off can be taken. 

There are two quotes that (so far) have really stood out for me, and illustrate the "false" and "misleading" charges I stated above.

Sen. Elizabeth Warren tweeted "Today, @HouseGOP are voting to make it legal for employers to cheat workers out of overtime. It's a disgrace." Really, Sen. Warren? So, does that mean that all local, state and federal government employees have been cheated all these years? Does that mean that the congressional aides that work for you are being cheated? If so, then there are tens of thousands of government employees who should now have a massive class action against the federal government. I wonder how that will work. This bill simply gives private employers the same ability that public employers have had – and gives private-sector employees the same option that public-sector employees have had. And, I might add – with more generous terms across the board.

The decision to accept time off in lieu of wages is voluntary, and can be revoked at any time by the employee. The bill does not allow employers to make a wholesale decision for all employees across the board forever. Each individual employee can make his/her own decision at any time, and revoke it at any time. The bill also requires that any unused comp time be paid out within 30 days of the end of the year (either calendar or fiscal, depending on how the business operates). It also requires that the time be paid out at the wage rate either in effect at the point the time was earned, or when it is paid out – whichever is higher. Similar provisions are included in the instance an employee changes his/her mind and wishes to receive pay instead of comp-time during the operating year. 

Rep. Suzanne Bonamici states that "This bill takes away overtime pay and instead the worker gets a vague ‘IOU’." A tad misleading Ms. Bonamici. Just is as the case with any request for time off, an employer is allowed to require reasonable notice of intent to use the compensatory time. Again, it doesn’t take away overtime pay. It simply offers employees a choice – again the same choice enjoyed by government employees.

These two quotes, and others like them, are what most news outlets have been leading with when reporting on this bill. They fail to go into any detail whatsoever that would more adequately explain the true nature of this bill. If you only listen to or read the "headlines" you don’t get the full story or the true story. No one should decide whether this is a good bill or a bad bill based only on what the attention-getting story "headlines" are, or even just reading a blog on the internet. Dig deeper and get the facts, then make your decision. In light of that, here is the actual text of the bill (it's fairly short, so don't panic!):

HB 1180

Friday, April 28, 2017

HR Basics v. Frills

Build a strong foundation before adding the juice bar


For 26 years, we’ve been chasing an elusive goal – employee engagement. In 1990, Boston University professor William Kahn published a research paper that sought to explain why some employees connected with their work more personally than other employees. He discovered something he called "engagement". We’ve been after it ever since. At that time, the research showed that only about 30% of employees were "engaged". Today, that number hasn’t really changed. Obviously, we’re doing something wrong, and keep on doing it. Sound familiar?

While I’m not sure what the answer (or, more likely, answers) is, I believe I know one huge obstacle. We simply fail to build a strong foundation. Without that, there is nothing to support all those nice-to-have perks that we think we must have in order to get "engaged" employees. Of course, it seems clear that all those desirable perks don’t really add much to the engagement formula, either. If you don’t have a proper foundation, you’ll miss other, equally important concepts as well. Do you want a culture of respect and civility? Do you want professional and business growth? Start with your foundation.

Many big companies and even start-ups have focused on adding perks to their workplaces in some pretty impressive ways. In-office yoga and massages, X-box, PlayStation, and yes the ubiquitous Foosball tables. Google with its bocce-ball courts or spa services is another good example. While I’m sure that some of these things make some of the employees happy, some of the time, happiness does not promote engagement or productivity.

A solid HR foundation should encompass at least the following:

  • Improve performance management processes and accountability
  • Provide employee training and development
  • Enhance effectiveness of the senior management team
  • Improve leadership development programs
  • Maintain appropriate compliance standards

No combination of spa services, game rooms or juice bars will fix a broken culture and bad management. If you don’t think this is important take a current look at Fox News, Uber, our military academies, Sterling Jewelers, and many more. These are just the cases that have hit the national news. Ask these companies if the PlayStation prevented the situations they’re now facing.

Gallup’s surveys consistently show that the most powerful driver of engagement is high-quality leadership and coaching. At least 70% of the variance in engagement scores across business units comes from employees’ feelings about the managers to whom they report. 

Satisfied or happy employees are not necessarily engaged. And engaged employees are the ones who work hardest, stay longest, and perform best.

"If you're engaged, you know what's expected of you at work, you feel connected to people you work with, and you want to be there," says Jim Harter, Ph.D., Gallup's chief scientist of workplace management and wellbeing. "You feel a part of something significant, so you're more likely to want to be part of a solution, to be part of a bigger tribe. All that has positive performance consequences for teams and organizations."

Developing your leaders and their leadership skills is imperative. Many of the qualities that drive effective management are learned behaviors: good communication, project management, conflict resolution, ethical behavior and more. HR can foster this development if given the opportunity and appropriate resources.

Gallup’s State of the American Workplace is a comprehensive report, but worth the read.  For easier reading and finding your interest, the subsections are broken out. Take a look.

For a great summary of the report, head on over to China Gorman at TLNT.

Thursday, April 13, 2017

Final Update – Maryland General Assembly 2017

And the votes are in………

Wow. Kind of a surprising session this year. It started off quite active in terms of employment law/workplace regulation, seeing returns of many bills presented repeatedly over the last several years, but ending with only one significant bill being passed – almost. More on that below.

We saw returns of so-called "predictive scheduling" laws, minimum wage increases, attempts to bring the failed federal overtime minimum salary increase to Maryland. All of those efforts failed to make it out of committee.

Just like the old saying that we don’t really want to know how sausage is made, many of us probably don’t know, or want to know, the whys and wherefores of how and what laws gets passed. I find it fascinating, however. This session left me with more questions than usual.

The first (and probably most obvious) question is why so many bills were proposed but failed to get much attention at all in committee? The easy answer would be that the legislature was focusing all its attention on getting the paid sick leave bill passed – even at the expense of one of the two minimum wage bills. Neither minimum wage bill received much discussion and didn’t progress through committee to the degrees of the past, despite all the marches, protests and "fight for fifteen" events around the state and around the country. Did they lose their appetite for this movement? Hard to know. 

Events in Baltimore City surrounding raising the minimum wage there to $15.00/hour by 2022 highlighted an interesting situation. While the Baltimore City Council did indeed pass that law for the city, Mayor Pugh vetoed it, saying she felt putting Baltimore City in a "donut hole" relative to surrounding jurisdictions would be detrimental and she would rather see such a change coming at a state level. But…………..when an effort was made by some council members to call for a special meeting to override her veto – they couldn’t get enough council members to sign on, therefore killing the law at least for this year. Given the hue and cry from the council for quite some time over this issue, I have to wonder why they couldn’t pull it together enough to force the meeting and override the veto. When push came to shove, they …..dodged. Might there be a hint in this concerning actions at the state level?

Both minimum wage bills in General Assembly failed. One – raising the minimum to $12.50/hour, received an unfavorable report in committee and was withdrawn. The other, raising the minimum to $15.00/hour and eliminating the tip credit for tipped employees, died in the Senate Finance Committee – no action. Hmmmmmm.

Passing laws to prohibit employers from seeking salary history information from applicants has increased this year (Philadelphia, New York City, and Massachusetts among them). A bill presented here in Maryland this year was expected to get at least a fair amount of discussion, if not actually passed. Instead, it fell pretty flat.

Two "predictive scheduling" bills were presented too late in the session and were referred to the respective Rules committees as is procedure when a bill is presented after the normal deadline. This step is often a formality and the bills are passed through. Not the case with these bills. They languished in the Rules committees. Both of these bills were amended from prior years and now specifically targeted the retail establishment rather than all employers. 

Now we get to the paid sick leave bill. You’ve heard all the speeches, all the politicians, celebrities and others (most of whom have no idea of what it’s like to run a business, by the way)? You’d have to be pretty oblivious to have missed all of this by now. So, two bills were presented this year (two seems to be the preferred number of options here in Maryland). The Governor’s submission – calling for 5 paid leave days (not just sick leave), applying to businesses with 50 or more employees – didn’t get any discussion whatsoever. They simply ignored it. The state Democrats fought over their own bill – see the summary here

So, this bill sat around in both the Senate and the House committees for at least a couple of weeks. Presumably, they were talking back and forth about how to reconcile the two versions (and they were different). But, you would think that based on how important they felt it was to get people covered with paid sick leave, they would have acted a bit quickly. Instead, they didn’t (it appears) make the final decision to put the Senate version to a full vote until it was too late to override the expected veto – during the current session. Assuming the Governor vetoes this bill – and he has promised to do so – they will have to wait until January to vote to override. What kept them from getting it out in time for the Governor to register his veto, and for them to vote to override?

Interesting question. In order to override a veto in Maryland, our state constitution calls for 3/5 of both houses to vote for the override. The House passed the bill with a small cushion of 2-3 votes. However, the Senate passed the bill with the exact number it needed – 29. In other words, if there is even one defection, they will not be able to override the Governor’s veto. A lot can happen between now and the third week of January 2018. Does the loss of appetite in the Baltimore City council for the minimum wage bill hint at what may happen? When push comes to shove in January, will the votes be there for paid sick leave?

Friday, March 24, 2017

New Update Maryland Employment Legislation

It ain’t over till it’s over…


Arguably the most active – and – fought over, piece of legislation this year in Maryland is HB0001/SB0230 – Maryland Healthy Working Families Act. Here’s where we stand today:

This sick and safe leave bill passed both a full House of Delegates and Senate vote; it is currently working its way back to the House for a first round to attempt reconciliation of the now two versions of the bill. The Senate passed several amendments (last year it did not get out of the Senate Finance Committee). Ten amendments were offered in the House and all but one was rejected. Current Senate amendments provide that businesses with 15 or more employees are covered but would apply to employees working at least 12 hours per week; requires accrual of leave at the rate of 1 hour of paid leave for every 30 hours worked, up to 40 hours per year. This bill has several other very proscriptive provisions on how, when and under what circumstances leave can be accrued used or denied. It does also include a pre-emption for future local jurisdiction laws. The preemption clause along could sink any reconciliation.
As a reminder, and with the changes made by the Maryland Senate, here are some of the many provisions of this bill:

  • Applies to businesses with 15 or more employees. (Businesses with fewer than 15 employees must provide unpaid sick and safe leave, and therefore must track how much unpaid leave these employees use.)
  • Applies to employees working at least 12 hours per week, or 24 within a two-week pay period.
  • Provides 1 hour of sick and safe leave for every 30 hours worked.
  • Allows an earnings cap of 40 hours per year and usage and accrual caps of 72 hours per year.
  • Allows a waiting period for use of leave for the first 106 calendar days of employment. (This was a small concession to exclude "seasonal" employees as eligible for paid leave.)
  • Requires carryover of accrued leave up to 40 hours year to year. Carryover is not required if all leave is granted in a lump sum at the beginning of the year.
  • Allows "borrowing" of time before earned/accrued.
  • Requires reinstatement of unused leave if a separated employee returns within 37 weeks of leaving (unless unused leave was paid out upon termination).
  • Requires allowing use of leave for non-illness –related reasons.
  • Includes grandparents, siblings, etc., in definition of "immediate family".
  • Only allows verification/justification of leave if used for more than 2 consecutive shifts.
  • Changes "presumptive violation" to "rebuttable presumptive violation". Small consolation. Before the bill required the assumption the business was in violation of the law from even a small, obviously unintentional recordkeeping error. So, now, the bills allows the business to "rebut" that presumption. And, the penalties are higher than any other employment regulation penalties in the state.

Meantime, the Governor’s paid leave bill sits in committee with absolutely no action. 

Not surprisingly, Governor Hogan has proclaimed this bill "dead on arrival". The question now is whether or not enough votes are available for an override of that veto should we come to that.

If any version of this bill passes, businesses will need to very carefully review all the provisions in detail in order to ensure compliance. This goes far beyond a simple paid leave law. It dictates who, how, and when leave must be earned, accrued, carried over and under what specific circumstances foreseeable leave can be denied. It is more extensive than any paid leave law in the country.

Thursday, March 16, 2017

Health Insurance vs. Health Care

They are not the same

Prior to the Affordable Care Act going into effect in 2010 (was it really that long ago?) I remember all the hype, all the debate and the marketing touting it as a huge improvement in health care for Americans. As someone who was actually paying attention in the early years to what this law would actually do, I was always surprised at this argument and how so few were listening to those who actually "got it". The ACA did very little, if anything, to improve health care, and wasn’t really intended to. It also didn’t do anything, and wasn’t really intended to reduce the cost of health care. In some ways, it increased the cost of health care (through various taxes and fees).

The ACA was intended to lower the cost of, and therefore increase access to health insurance. The reasoning was that if more people could be covered by health insurance, more people would be able to access quality health care. Noble intentions. Unfortunately, for various reasons, those intentions have not been realized. Access to health insurance does not equate to access to health care. While more people may be able to afford an insurance policy, that does not mean they can afford to get actual health care. High deductibles, co-pays and co-insurance make it very difficult and sometimes impossible for many people to actually use their newly gained health insurance. Maximum out of pocket limits be damned – if you can’t afford to go the doctor, or get the treatment your doctor recommends because you don’t have an extra $2000 or more (for an individual) laying around to cover the deductible, and then the additional costs of co-pays and co-insurance, you still don’t have access to health care. Those figures rise with plans with lower premiums and with family plans.

Over the past seven years, there have been numerous analyses on the failures – and some successes – of the ACA, and I won’t reiterate them here. If you’re not aware of this, you can easily find them through a simple Google search. But suffice it to say that whether you are talking about how the law affects individuals, or the failures of the risk corridor plans, or any other aspect of the law – it isn’t working anywhere near its original goals.

Now, with the release of the Republican’s initial try at repealing and replacing the ACA – the American Health Care Act – the debate is raging again. 

The problem is that the real issues are still not being addressed. First and foremost, let’s be clear: this is about the individual market – meaning insurance purchased by people who do not have access to an employer’s group plan or some government program. The group market (employer-based insurance) works quite well. Yes, premiums are rising in the group market as well, because the cost of medical care is high, and continues to rise. But insurance available through most employers is by far less expensive and covers more than plans available to individuals.

As someone with first-hand experience with insurance in the individual market, I can tell you that it is not "affordable" and I have difficulty seeing how someone of lesser means is able to get quality health care on a regular basis with current individual plans. Whether you purchase a plan through an Exchange, or directly from the insurance company, the plans are all the same (as required by the ACA). 

I believe the most important issue underlying this whole debate/discussion is that the cost of medical care in the United States is ridiculously high and keeps growing. No insurance policy is going to cure that problem. No law that pretends to extend access to insurance coverage to everyone is going to cure that problem. And yet, there doesn’t seem to be much effort expended on addressing this issue – partly because there continues to be this ridiculous penchant for equating health insurance with health care.

Will the American Health Care Act be any better, once it reaches its final form? Probably not. Any such efforts (whether the ACA or the AHCA) will continue to fail for many reasons. Until we address the actual cost of medical care, there doesn’t appear to be any solution that will work for everyone or even most everyone.

What’s the answer? I have no clue. But, then again, I’m not being paid to find the solution; I haven’t been elected by my constituents to find the solution. And frankly, I doubt the people who are being paid, and who have been elected, are capable of finding that solution. Another thing people neglect to understand is that none of these people have to worry about their health insurance. I’d be willing to bet none of them really understand what current individual health insurance policies actually cover or cost. If they’ve ever had to purchase an individual plan (I doubt few of them have), they can afford to purchase the highest level plans and can afford the huge premiums attached to those plans. The rest of us can’t. 

I’d love to sit down and have a discussion with the likes of Nancy Pelosi or Paul Ryan to hear what their health insurance plans cost them, what they cover, and most importantly, if they truly understand all the issues facing people who must purchase their insurance on the individual market.