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.
The U.S. Department of Transportation has issued a final rule expanding DOT's current drug testing panel to include semi-synthetic opioids: hydrocodone, hydromorphone, oxymorphone and oxycodone on the required drug testing panel for DOT regulated industries. The drugs are more commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. Employees will no longer be tested for MDEA.
As required by the Omnibus Transportation Employee Testing Act of 1991, the DOT is harmonizing with the Department of Health and Human Services revised Mandatory Guidelines on Federal Testing Programs. The change will also clarify existing drug testing provisions, make technical amendments and removes the requirement for employers and Consortium/Third Party Administrators to submit blind specimens.
What employers need to know
The HHS certified labs performing DOT tests will make the change to all testing beginning on January 1, 2018. Employers with concerns should contact their collection locations or drug testing third party administrators for guidance.
Important Note: NON DOT tests are not affected by this change, however, in light of the current opiate abuse epidemic, we strongly recommend that all employers expand opiate testing to include the above listed drugs. To expand opiate testing, contact your drug testing provider.
If you have any questions regarding this change, please contact our offices.
At the end of June, OSHA published a notice in the Federal Registrar proposing a delay to the required reporting of illness and injury data under the Record Keeping Rule. OSHA has also signaled that other portions of the rule may be under review and/or revised.
Additionally, In two separate lawsuits challenging the anti retaliatory portion of the rule, the federal district courts have issued a stay in litigation while OSHA considers whether to review and/or revise all or part of the rule. This is the portion of the Record Keeping Rule that will affect incentive programs and post accident testing.
What employers need to know
The delay only affects the effective date of the reporting of illness and injury requirement. While OSHA is considering reviewing and/or revising other sections of the Record Keeping Rule, nothing official has come from OSHA. Employers should continue to follow the current protocol and only require a post accident drug test when there's reason to believe that drugs or alcohol may have been contributed to the cause of the injury.
We will continue to monitor the situation and send an update as soon as information is made available.
We had such an overwhelming demand on our webinar: "Don't Get Fined: Ohio's Medical Marijuana Law and OSHA"s Position on Post Accident Testing", that we scheduled a second session. To register, click the link below and we thank you for making this course so popular!
Webinar: Don't Get Fined: Ohio's Medical Marijuana Law and OSHA's Position on Post Accident Testing
Date: Tuesday, December 20 at 1 pm
Seating is limited. Pre-registration is required.
Click here to register for the December 20th session.
Featured Webinar Schedule:
"Don't Get Fined! Medical Marijuana in Ohio and OSHA's position on Post Accident Testing"
12/14 at 9 am or 12/20 at 1 pm
Injury Nurse Triage: The Missing Piece for an Effective Workers' Compensation Program
1/25 at 9 am
"Transitional Work Grant and Bonus Program: Right for your Company?"
2/22 at 9 am
Managing a Drug Free Workplace in a Heroin and Prescription Drug Epidemic
3/15 at 9 am
To register, please visit our website: Webinar Schedule
Webinar: "Don't Get Fined! Medical Marijuana in Ohio and OSHA's Position on Post Accident Testing" Scheduled for 12/14
OSHA's position on post accident testing could bring big fines if your company is not in compliance and Ohio's new medical marijuana law is leaving employers perplexed. Join us for a one hour webinar where we will review it all!
Seating is limited. Pre registration is required. Register here: Webinar Registration.
Featured Webinars Schedule:
For more information or to register for our Featured webinars: First Connect Webinar Schedule
Ohio's Drug Free Safety Program doesn't exempt your company from OSHA's position on post accident testing
,A few weeks ago, we received an inquiry from one of our partners asking about OSHA's position on post accident testing and whether Ohio employers in the Drug Free Safety Program (DFSP) needed to comply. It seems one of his employers had attended an education session where the speaker addressed the new OSHA rule. In doing so, the speaker stated that employers in the DFSP were exempt from compliance with the post accident testing provision addressing automatic testing policies. The generality of the statement by the speaker leads employers in Ohio down a dangerous path.
First, OSHA's position on post accident testing addressed in the new recordkeeping rule makes having an automatic testing policy on all injuries a violation of the final rule. The rule "encourages" employers to only test when there is reason to believe that drugs and/or alcohol may be involved. While it is true that, on October 19, OSHA clarified their position on employers exempt from the rule to include those participating in state workers' compensation discount programs, Ohio's Drug Free Safety Program does not require an automatic testing policy after an injury.
From the Drug Free Self Implementation Guide (pages 16 and 17):
"BWC provides what we consider to be an “intelligent-testing design.” As such, even after conducting an accident investigation and determining who may have caused or contributed to a work-related injury, we do not require employers to order a post-accident test if all the following apply:
To better understand the DFSP requirement, let's use a simple example: A nurse hurts her back while lifting a patient. In an automatic testing policy, the nurse would be required to test. However, following the DFSP language above: if the injury is common to the nurse’s job (it is), there's no violation of work rules (there is not) and there’s no reason to believe that drugs or alcohol are involved (there is not), no test would be conducted.
Using the example provided above, it's easy to see that the DFSP only requires the same type of decision making process when an injury occurs that OSHA supports - not an automatic testing policy.
For many years, employers in Ohio have utilized an automatic testing policy after an injury requiring medical treatment. Nobody has told them that they have to, it's just become common practice. The automatic testing policy has never been a problem because the practice goes beyond what the BWC requires. But now that OSHA is on the scene and without a DFSP requirement to protect participants, those employers with an automatic testing policy are running afoul of OSHA's anti retaliatory provision and the consequences can be harsh. Unless regulated, employers should abandon the practice of automatic testing and move to a procedure and policy that allows discretion when requiring a test. More from our blog here: New Anti Retaliatory Rule Affects Post Accident Testing Policies.
Update: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.
This afternoon, a federal judge in Texas denied a request from employers and business groups for a preliminary injunction to halt the enactment of the anti retaliatory provision in the OSHA recordkeeping rule. The decision affects an employer’s injury reporting process, including post accident drug and alcohol testing policies and safety incentive programs. The decision only denies the preliminary injunction and a decision regarding a permanent injunction will come at a later date however, enforcement will begin December 1st without further delay and employers should review their policies and make the necessary procedural changes immediately.
While much of the focus on the final recordkeeping rule has been on the electronic reporting requirements, language addressing injury reporting was also clarified. The rule requires employers to have a reasonable injury reporting process. For post accident testing, OSHA said drug testing programs requiring blanket testing of all employees who experience an injury would violate the standard stating the threat of testing would discourage reporting. OSHA has instructed employers to only use post injury drug testing “when there is a reasonable possibility that drug use by the reporting employee was a contributing factor”.
In the decision, Judge Sam Lindsay said the organizations and employers seeking an injunction against enforcement of the rule failed to show that there would be irreparable harm if OSHA moved ahead with enforcing the rule.
On October 19, OSHA issued guidance on safety incentive programs, disciplinary programs and drug testing and is available on the OSHA website or by connecting to our blog: OSHA Issues Guidance on Post Accident Testing.
On October 19, OSHA published a memorandum clarifying the agency’s position on incentive programs, disciplinary procedures and post accident testing policies included in the preamble to the recordkeeping rule. The clarification also provides example scenarios.
While not in the final rule, the language in the preamble indicated that certain types of incentive programs, disciplinary policies and post accident testing would be in violation of Section 1904.35. The section requires employers to establish reasonable procedures for reporting a work related injury or illness and prohibits retaliation against employees who report.
In addition to the initial information stating drug testing in compliance with state and federal law is permissible, OSHA has further clarified that post accident testing conducted under a state workers’ compensation law does not violate the rule.
The agency has held on their initial position “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” To further clarify, OSHA offered examples:
“Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv).
Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”
To view the full memorandum, visit the OSHA website: Interpretation of 19.04.35 (b)(1)(i) and (iv).