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