At the end of October, President Trump signed into law a package focused on curbing the misuse of opioids. Included in the legislation, was a provision requiring that the Department of Health and Human Services update Congress on the status of hair testing by December 24. The update is required to include a schedule, with benchmarks, for the completed guidance.
The History of the DOT and Hair Testing
The FAST Act Highway Bill in 2015 called for DOT to recognize hair sample drug tests as an alternative to urine tests. HHS was required to produce guidelines for how the tests should be conducted. Almost two years after the deadline, motor carriers are still waiting.
What’s the current status?
The chairman of the Substance Abuse and Mental Health Services Administration’s Drug Testing Advisory Board, Ron Flegel, recently advised at a December 4thmeeting, that the hair proposal has been reviewed by HHS operational division and the next step would be a review from more than a hundred federal agencies. The proposal will also need to be reviewed by the Department of Transportation and the Nuclear Regulatory Commission. Flegel also reported that HHS is nearing completion of the final approval for mandatory oral fluid guidelines for drug testing.
What should employers do?
While we have seen an uptick of carriers using hair testing in addition to urine testing in recent years, federal law still only allows urine tests. Employers should continue as they are until the final chapter is written. We will continue to provide updates as this winds its way through the approval process.
One week after Ohio’s Medical Marijuana Control Program patient registry opened, over 2000 patients have been registered and retail dispensaries are expected to open in sixty days.
Employers who have not yet addressed a medical marijuana policy can no longer afford to delay.
Does my company need a written policy?
House Bill 523 makes it clear that Ohio employers, who plan to enforce a medical marijuana protocol, must have a written policy and it must be communicated to employees prior to enforcement. It’s important to note that the written policy is required for all situations with medical marijuana, including when the workplace is planning an accommodation for use.
Having a written policy goes far beyond the medical marijuana law in Ohio, however. With the current state of opioid misuse, the significant rise of cocaine and methamphetamine overdoses and a benzodiazepine misuse epidemic on the horizon, it is more important today than ever before for an employer to protect their business. And that means allbusinesses - even those who don’t currently require their employees to drug test. Without a policy in place, the employer will have difficulty enforcing a situation if an employee reports to work impaired.
Know the Law for Your Workplace
House Bill 523 does not interfere with the right of the employer to have a drug free program (including the Drug Free Safety program) and zero tolerance discipline policies can continue. Employers are allowed to ban all use and terminate employees who violate the policy or can also choose to accommodate some use, as well. They are under no obligation to hire an applicant who uses medical marijuana.
If the organization is required to comply with a federal authority, like the DOT, or is a federal grant recipient, marijuana remains illegal. Individual contracts may also prohibit the use of medical marijuana. Multi state employers should know the laws in each state. What is required in Ohio may not be allowed in other states and more than one policy may be necessary.
What’s an employer to do?
There’s no “one size fits all” answer to the medical marijuana policy question. While banning the medical use of marijuana may seem to be the simple choice, every company is different and there are some important factors that need to be considered. For example, a company with only administrative type jobs may choose to allow use since the safety risk is low. In a factory with a high incidence of injuries, banning use on all levels is probably more appropriate. In some areas, hiring has been difficult due to the booming economy and low unemployment rate, making retention of current employees very important. And, one of the hardest situations of all: the company with a Last Chance Agreement disciplinary policy. Does it make sense to allow an employee who tests positive for cocaine to keep their job while immediately terminating the employment of a different employee who is in legal compliance with the Ohio Medical Marijuana Control Program? These are just some examples that employers must consider before settling on a policy in their company.
Many employers have already reported situations involving the use of medical marijuana. Contact your drug free consultants and legal counsel to ensure your organization is making the best decision for your company.
Current training clients of First Connect: We help you work through the medical marijuana policy issues at no charge. Get in touch with our offices today!
New to First Connect? We have low fee support services that can help with your policy. Call us today for more information.
Ohio may see it's first crop on the shelves very soon. The first crop was harvested earlier this month and the first licensed testing lab at Hocking Technical College is expected to open in the next few weeks. Retail dispensaries could be ready to open their doors in early December and the state Board of Pharmacy has indicated that the patient registry will be turned on as the market nears operation.
Reminder: Per Ohio state law, employers are required to have a written policy on medical marijuana use and communicate that policy to employees before enforcing the rule. If you've been waiting to update your medical marijuana policy - now is the time as it seems as though we'll be seeing medical marijuana in our immediate future. See our Blog Post from 8/8/2018 for more information: Employers and Ohio's Medical Marijuana
Join our Featured Webinar on November 7: Medical Marijuana in the Workplace
Legislative Package aimed at curbing Opioid Abuse has provision to update on status of hair testing for DOT
In 2015, the FAST Act highway bill included a requirement for the U.S. DOT to recognize hair sample testing as an alternative to the current urine tests. Congress directed DHS to produce the guidelines for testing within one year, however, three years later, DHS has not yet submitted the information to Congress.
That may all change soon. Late yesterday, the President signed a legislative package aimed at curbing the abuse of opioid drugs into law and, in the package, included a provision requiring DHS to report to Congress within 60 days on the progress of the hair testing guidelines and explain why the requirement has been delayed. The provision also requires a firm schedule to complete the provision.
Once DHS finalizes the hair testing guidelines, employers could choose to move to hair testing for their regulated drivers. That's good news - and a cost saver - for the many employers who are conducting both hair and the required urine test for drivers. We'll keep you up to date!
Late last week, OSHA issued compliance guidance in an attempt to clarify the department’s position.
In May of 2016, OSHA finalized the new recordkeeping regulation and, with it, included a provision meant to prevent an employer from retaliating against an employee who reports a work related injury. While the original provision never mentioned blanket post accident drug and alcohol testing policies specifically, the final regulation’s preamble addressed exactly that. It was the preamble that left employers questioning whether their blanket post accident testing would open their organization up to substantial fines.
Last week, from OSHA:
“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Since the clarification, we’ve had many calls from confused employers – and rightly so. Although the above guidance may have loosened the testing reins in certain situations, it certainly does not walk back the prior guidance completely. Instead, the latest from OSHA reinforces the need for an employer to test only when there’s a legitimate business need and, above all, for the employer to be consistent when making testing decisions in similar situations. In other words, nothing has really changed.
In the last two years, many employers have come to realize that a blanket testing policy, while easier to manage, has never been a good business decision. In blanket testing, employers often had standing orders in the office of their treatment provider that gave the go ahead to test any employee who presented for treatment of a work related injury – regardless of the cause. Employees who presented for the treatment of a bee sting, for example, or those who were injured as a result of a co-workers’ negligence, very often, had to submit to testing. Employees who presented for treatment days or even weeks after the injury also had to submit to testing. Having such a decisive policy has, over the years, resulted in causing issues for a decision the employer did not directly make and consequences that their policy may not be prepared to support.
Where do we go from here?
This is not the last time we’ll be hearing about this particular regulation. At this writing, there are still two lawsuits that were put on hold by the courts while the current administration reviewed the rule. It is still quite possible that the entire rule will be walked back. But, until that time, employers should continue to only require post accident testing when there is reason to believe that drugs or alcohol are involved. To ensure consistency, use a checklist for every injury and document the information that led to the decision to test or not test. Take time to train your supervisors, as well. Their documentation, if they decide to require a test, will not only cover OSHA’s requirement but may also help your case if there’s a reason to challenge the claim. So train your supervisors to be detailed!
Drug Free Safety Program Participants
The recently released guidance also mentions, again, that there are exceptions that allow for a blanket testing policy, including participation in a workers’ compensation discount program. This is just a reminder that Ohio’s Drug Free Safety Program does not now nor has it ever required testing after every injury. While it was common for employers in the DFSP to have blanket testing policies, the Drug Free Safety Program’s Self Implementation Guide (page 17) is quite clear in stating that there are situations when testing is not required. In other words, continue to follow OSHA’s requirements until otherwise noted.
Note: The guidance also included information on safety incentive programs. For more information, visit OSHA's Website: Clarification on OSHA's Position.
For questions, please contact our offices.
Ohio's medical marijuana program has hit a snag. Because of a delay in issuing certificates to grow centers and processors, product will not be available to patients on the required roll out date of September 8th. The state has also delayed implementing the patient portal for registration until closer to the time when product will be ready. To date, almost 200 doctors have been certified to recommend medical marijuana.
What employers need to know
While the program has hit a delay, we've experienced an increase in calls from employers who have encountered a situation involving medical marijuana use by an employee. The law does provide an "affirmative defense", allowing patients found to be in possession to make the argument that they meet the conditions of the law before the law goes into effect. Some have an "Affirmative Defense" letter issued by their doctor as proof of compliance.
Employers should prepare now.
Under the new law, employers are under no obligation to permit use by employees or allow possession of medical marijuana at the worksite. Employers don't have to (and should never) allow an employee who is impaired to continue to work. Drug Free Workplace programs (Including the Drug Free Safety Program) are not affected and those who have zero tolerance policies for a testing positive can continue this discipline policy. And, while an employer can decide whether their own organization will completely ban use or accommodate use for employees, the law is clear that there must be a written policy and it must be communicated to employees prior to enforcement. Without it, employers won't have a leg to stand on. Whether your company is thinking about banning the use altogether or accommodating use for employees, we strongly recommend that all organizations make developing a medical marijuana policy an immediate priority before a situation occurs.
If you have not yet attended our webinar "Medical Marijuana in the Workplace" (free of charge), we will be presenting it again on August 23 (Register Here) . For our current training clients, assistance in updating your policy is covered under your support services and always free of charge to you. For other employers, contact our offices - we can help you too!
It's time for all DOT companies to ensure they are ready for the new Chain of Custody forms starting on July 1. DOT drug tests completed on the wrong form after June 30 will require the lab will be required to submit a memorandum for the record and will cause a delay in processing.
The new Chain of Custody form mirrors the January 1, 2018 DOT changes. If your company is not currently using eCCF (electronic), it's a good time to check with your testing provider about making the switch. The eCCF will reduce mistakes and paperwork and ensure faster drug screen collections.
For more information on this required change, visit the U.S. Department of Transportation website: U.S. DOT
First Connect has scheduled three webinars on the upcoming Medical Marijuana law and a Bootcamp for employers with drug and alcohol testing programs. "Medical Marijuana in the Workplace: Are you ready for Sepetember?" will be presented on June 14 and July 12. During the webinar, we will review the ins and outs of the new law, the responsibilities of the employer and best practices in your workplace.
Both webinars are a part of our Featured Webinar Series and are free of charge to employers. To register, visit our "Webinar Schedule" page.
Open Enrollment for Managed Care Organizations in Ohio started today and we’ve already received a few calls with questions. Understandably, it’s a confusing time with a lot of information coming from many different sources. The window for an employer to change their MCO provider lasts 30 days and comes around only once every two years. The next opportunity to change will be in 2020. All employers – even those comfortable with their current MCO - should take this time to evaluate their workers’ compensation program and the costs associated with injured workers over the last two years.
The MCO is a critical partner and plays an important role in ensuring quality care for the injured worker and controlling the bottom line for employers. Workers’ compensation costs can be expensive. For that reason, evaluating the MCO’s performance is crucial to the financial stability of the company.
What Does an MCO Do?
In Ohio, all public and private employers in the state fund workers’ compensation system are required to have an MCO. The services of the MCO are paid for through the employer’s workers’ compensation premium so the decision to use one MCO over another should be based on performance rather than cost.
All MCOs are tasked with the medical management of the workers’ compensation claim. The team will focus on the injured worker’s well being, ensure quality medical care and return the injured worker to duty as soon as safely possible. While all MCOs have the same basic function, some perform much better than others.
While reviewing the claims for the last two years, the biggest question to ask is if the claims history looks better now than it did two years ago? Is the premium and experience modifier moving in the right direction (decreasing)? Has the current MCO been responsive? Take a look at the most difficult claim and ask if the MCO explored all options to move that injured worker’s recovery forward or was the handling of the claim frustrating and disappointing? If so, there may be a better provider.
Size Doesn’t Matter
During open enrollment, employers can expect to receive information from many sources. It’s important to understand the motivation of each endorsement, metric and marketing piece received. Remember: Bigger doesn’t always mean better and smaller doesn’t mean more responsive. What does matter is the MCO’s performance.
Marketing material may contain many metrics and statistical information. It’s important to read the fine print and establish if the information is current. Any date listed before 2018 or without current information should be immediately discarded. The BWC also provides the most up to date information on many benchmarks on the MCO Report Card.
Know What’s Important
Return To Work: Lost time claims have a significant impact on an employer’s workers’ compensation premium. Having an MCO that consistently performs well in returning an injured worker to the job should be an employer’s number one priority. Return To Work is one of the metrics listed on the MCO Report Card. On the MCO Report Card, the higher the number for Return To Work, the better the performance.
Medical Provider Networks – An MCO can also have substantial influence on the medical costs by utilizing a medical provider network with rates negotiated lower than the current BWC fee schedule. Lower costs mean less impact on the employer’s experience and, in turn, controlled premium dollars.
Drug Utilization Review (DUR) - Lastly, choose an MCO that makes DUR a standard piece of the claims management protocol. The DUR reviews the claim for inappropriate medications or excessive use. This process ensures the health and safety of the employee and workforce and, also, controls the cost of claims.
Who Can You Turn To for Help?
If, after evaluating the current provider, an employer decides to explore other options, there are many resources to help find a few MCOs to interview. Employers should always interview at least two candidates. First, start with your Third Party Administrator. The TPA knows the employer’s claims history and management style and will be a good resource for the employer. Reminder: Some TPAs and MCOs share a parent company. When such a relationship exists, it’s best to request two additional MCOs and interview all three. While this process may take a little more time, it’s best to ensure the decision is a proper fit for the company and not because of the TPAs responsibility to their parent company.
Chambers of commerce and business associations often endorse an MCO during open enrollment. Before following the recommendation in blind trust, ask questions. Why did the Chamber/Association choose the particular MCO? When was the MCO last evaluated and what information was the decision based upon? It’s a good idea to get multiple recommendations and interview two to three prospects.
And, don’t forget the best resource of all: other employers. Employers will be able to provide personal experience and can help to understand the claims management style of the MCO.
Lastly, First Connect has been helping employers choose Managed Care Organizations and Third Party Administrators for over 14 years. Our staff is an unbiased resource in that we aren’t paid by any MCO or TPA. We work only for employers.
Open Enrollment ends on Friday, May 25th and all enrollment forms must be received by the BWC before 5:30 pm. Enrollment can be completed online or by printing off an enrollment form and faxing it to the BWC. Forms can be found on the BWC website: Enrollment Forms
For more information or assistance in choosing an MCO that is right for your company, please call our offices.
Good news for Ohio employers! BWC administrator, Sarah Morrison and Governor John Kasich announced their intention to recommend a $1.5 Billion rebate for Ohio businesses, schools and local governments. The recommendation will be presented to the Ohio BWC Board of Directors on April 25th with a vote coming in May. If approved, the BWC will have returned $8 billion to employers since 2011.
The rebates are made possible by a decrease in the amount of claims filed and excellent return on the investments in the fund.
Employers can expect to receive their rebate in the amount equal to 85% of the employer's premium paid for the 7/1/2016 - 6/30/2017 fiscal year (calendar year 2016 for public employers). The rebate is expected to be mailed in July. Rebates for employers in the Group Retrospective Rating program will be mailed in October.
The BWC also announced preliminary plans for other programs impacting the safety and wellness of Ohio's worker's. More details on those plans will come in the upcoming weeks.
For more information, visit the Ohio BWC website: $1.5 Billion Back for Employers