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Workplace Drug Use

Safety First

Knowing whether someone used marijuana recreationally or for medicinal purposes is not really the point. Making sure workplaces are safe, is.
By: | February 20, 2017 • 7 min read

Transportation companies are taking a hard look at their zero tolerance policies now that 28 states have legalized the medical and/or recreational use of marijuana.

Knowing when to discipline an employee and when to stay one’s hand though, is going to be difficult. Traces of the nonactive ingredients of marijuana can remain in a person’s system for days, even months. It will be hard to determine whether an employee was getting high on the job or is simply testing positive after a long weekend.

One thing experts agree on is that the goal of any kind of test should be to determine whether a worker can do their job safely and effectively.

“No matter what type of drug, whether it’s legal or illegal, including prescribed medication, we need to understand how they can impact workers’ ability to perform job functions, especially when operating vehicles or machinery,” said Paul Baute, a vice president within Marsh Risk Consulting’s fleet safety practice in Indianapolis.

“We need to keep safety paramount.”

“The principal question they want to determine is whether the drugs can affect job performance, and particularly whether safety can be affected because an employee is working under the influence.” — Paul Baute, vice president, Marsh Risk Consulting

Commercial drivers are allowed a certain threshold of marijuana in their system by the U.S. Department of Transportation (DOT).

That threshold cannot exceed 50 nanograms of THC per milliliter of urine, Baute said.

Under DOT requirements, employers will also conduct confirmatory tests with a cutoff of 15 ng/ml. If a worker exceeds the initial cutoff, their case is referred to a substance abuse professional.

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That consultant in turn works with the employee and their doctor to determine whether there is a prescribed or over-the-counter medication that could have been the reason for the positive result.

If the employee still tests below the 50 ng/ml cutoff no matter the drug, then that would mean for work purposes, the substance is not in their system — zero tolerance really means that an employee cannot have an amount above the cutoff, he said.

For workers testing positive, employers could have a zero tolerance policy or they could have a rehabilitation policy, which is allowed by the DOT.

Employers can have separate drug testing policies for non-CDL drivers and operators of machinery, and still another for all other types of employees, such as office workers, Baute said.

“The principal question they want to determine is whether the drugs can affect job performance, and particularly whether safety can be affected because an employee is working under the influence,” he said.

Hair sampling is relatively inexpensive and the results are quick, but it tests for the longest time frame that the drugs could be found in the body, Baute said.

Which Test is the Right One?

The DOT’s primary test is a urine test, but the agency will accept a blood sample if a worker is involved in a collision and is unable to provide a urine sample at the time of the accident.

David Mitchell, director of risk control and safety, Aon Risk Solutions

David Mitchell, director of risk control and safety for Aon Risk Solutions’ transportation and logistics practice in Little Rock, Ark., said the DOT determined that the urine tests would not change because of all of the new state laws legalizing marijuana.

Some fleets use hair testing in addition to urine testing, but the method is at a “tentative stage right now,” as the Motor Carrier Safety Administration has not approved hair testing.

“It’s a very sensitive safety risk management position at this time,” he said.

“Hair testing adds costs and that would be an additional fleet determination if they think it’s worth it for their own company culture.”

Regarding random testing, the federal agency last year reduced the percentage of drivers that are required to have such tests by 50 percent, because the previous years’ positive results “were so low there was no justification in the higher test rate,” Mitchell said.

“Drug use among truck drivers is not high, and drugs are not the cause of many crashes,” he said.

“To prevent serious crashes, fleets that reduce driver fatigue, alcohol use, inattention and tailgating are having great results.”

Barry Sample, senior director of science and technology at Quest Diagnostics Employer Solutions in Seneca, S.C., said that there really hasn’t been much, if any, change in drug test cutoffs from the firm’s employer clients operating in the states that now allow for medical and/or recreational use of marijuana.

For those states that have had these laws for a longer time — Colorado and Washington — Quest’s clients have inquired whether they can remove marijuana from the panel or change the cutoff, but to date haven’t changed their policies.

“These inquiries are more from employers that are having difficulty finding qualified employees and they are now making a risk determination,” Sample said.

“Right now, they are not willing to take the risk of changing their drug testing policies because they don’t know the impacts to productivity and safety.”

Still, Quest is continuing to monitor possible changes in ordering patterns by employers.

“I would advise employers to continue to look at their employee base and make risk-based decisions as to what drug testing is important to help ensure that they have a safe as well as a productive workforce,” Sample said.

Mark A.R. Kleiman, professor of public policy at New York University, said that some companies use drug testing to screen employees for other characteristics that might be correlated with drug use, such as whether the person “has a taste for breaking the law.” Some employers just believe that marijuana users “are not good people.”

“But then you have to ask whether it’s an employer’s rule to enforce the law, or moral views, with respect to employees’ private lives,” Kleiman said.

It’s Not Drug Testing; It’s Impairment Testing

Ellen Komp, deputy director, California NORML

Ellen Komp, deputy director of the cannabis advocacy group California NORML in San Francisco, said that urine testing has never been scientifically shown to be safe or effective at improving workplace safety or productivity.

Komp cited a 1985 consensus report of medical expert opinion in the “Journal of the American Medical Association,” concluding that drug tests are an inherently unreliable indicator of drug impairment.

“Workplace drug testing programs are essentially spying on workers outside of the workplace, because they do not necessarily show whether a person is actually impaired if they smoked marijuana days earlier and traces of the drug have remained in the system,” she said.

“Hair sampling in particular can pick up marijuana use months earlier. It’s not a good way to ensure safety in the workplace, but rather a way to discriminate against workers.”

The advocacy group does support impairment testing “as a better way to ensure safety without discriminating against workers,” Komp said.

Bowles-Langley Technology Inc. developed an impairment testing application, and a 2009 study of the application under a grant by the National Institute for Occupational Safety and Health showed that such testing for fatigue and impairment in the workplace is both feasible and practical, said Henry M. Bowles, CEO of the Alameda, Calif. firm.

He also is a board member of Predictive Safety in Centennial, Col., which merged with Bowles-Langley last year and is now “leading the charge” for commercialization, conducting pilot studies with several companies including mining companies in South Africa.

It launched a mobile app, AlertMeter, which measures reaction time, decision-making and pattern recognition. The quick minute-plus test can be taken before or just as a person gets to work, and the results are transmitted to a common database that can be monitored by a safety manager.

Individuals take the test 10 times to establish personal baselines and then are tested against their own baseline. The software adjusts the baseline as people get better and better at taking the tests, but if people score significantly below their baseline both on an initial test and a retest, then their supervisor is alerted.

“Company policy should be in place to help a manager make a decision about what should happen,” Bowles said. “It could be that the individual stayed up with a sick child and maybe just needs to work on a computer instead of a forklift for the day.”

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Bowles stressed that the firm is not trying to “overthrow the chemical drug testing regime” because it is pretty well-embedded in law, particularly for DOT-regulated companies. However, fatigue is not detected “or considered important” in the current system of drug testing.

“We’re seeing that a lot of impairment occurs because of fatigue as well as from the use of drugs, both legal and illegal,” he said.

“More and more companies are telling us, especially with the legalization of marijuana, that impairment testing makes the most sense.” &

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Focus: Workers' Comp

Do You Have Employees or Gig Workers?

The number of gig economy workers is growing in the U.S. But their classification as contractors leaves many without workers’ comp, unemployment protection or other benefits.
By: and | July 30, 2018 • 5 min read

A growing number of Americans earn their living in the gig economy without employer-provided benefits and protections such as workers’ compensation.

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With the proliferation of on-demand services powered by digital platforms, questions surrounding who does and does not actually work in the gig economy continue to vex stakeholders. Courts and legislators are being asked to decide what constitutes an employee and what constitutes an independent contractor, or gig worker.

The issues are how the worker is paid and who controls the work process, said Bobby Bollinger, a North Carolina attorney specializing in workers’ compensation law with a client roster in the trucking industry.

The common law test, he said, the same one the IRS uses, considers “whose tools and whose materials are used. Whether the employer is telling the worker how to do the job on a minute-to-minute basis. Whether the worker is paid by the hour or by the job. Whether he’s free to work for someone else.”

Legal challenges have occurred, starting with lawsuits against transportation network companies (TNCs) like Uber and Lyft. Several court cases in recent years have come down on the side of allowing such companies to continue classifying drivers as independent contractors.

Those decisions are significant for TNCs, because the gig model relies on the lower labor cost of independent contractors. Classification as an employee adds at least 30 percent to labor costs.

The issues lie with how a worker is paid and who controls the work process. — Bobby Bollinger, a North Carolina attorney

However, a March 2018 California Supreme Court ruling in a case involving delivery drivers for Dynamex went the other way. The Dynamex decision places heavy emphasis on whether the worker is performing a core function of the business.

Under the Dynamex court’s standard, an electrician called to fix a wiring problem at an Uber office would be considered a general contractor. But a driver providing rides to customers would be part of the company’s central mission and therefore an employee.

Despite the California ruling, a Philadelphia court a month later declined to follow suit, ruling that Uber’s limousine drivers are independent contractors, not employees. So a definitive answer remains elusive.

A Legislative Movement

Misclassification of workers as independent contractors introduces risks to both employers and workers, said Matt Zender, vice president, workers’ compensation product manager, AmTrust.

“My concern is for individuals who believe they’re covered under workers’ compensation, have an injury, try to file a claim and find they’re not covered.”

Misclassifying workers opens a “Pandora’s box” for employers, said Richard R. Meneghello, partner, Fisher Phillips.

Issues include tax liabilities, claims for minimum wage and overtime violations, workers’ comp benefits, civil labor law rights and wrongful termination suits.

The motive for companies seeking the contractor definition is clear: They don’t have to pay for benefits, said Meneghello. “But from a legal perspective, it’s not so easy to turn the workforce into contractors.”

“My concern is for individuals who believe they’re covered under workers’ compensation, have an injury, try to file a claim and find they’re not covered in the eyes of the state.” — Matt Zender, vice president, workers’ compensation product manager, AmTrust

It’s about to get easier, however. In 2016, Handy — which is being sued in five states for misclassification of workers — drafted a N.Y. bill to establish a program where gig-economy companies would pay 2.5 percent of workers’ income into individual health savings accounts, yet would classify them as independent contractors.

Unions and worker advocacy groups argue the program would rob workers of rights and protections. So Handy moved on to eight other states where it would be more likely to win.

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So far, the Handy bills have passed one house of the legislature in Georgia and Colorado; passed both houses in Iowa and Tennessee; and been signed into law in Kentucky, Utah and Indiana. A similar bill was also introduced in Alabama.

The bills’ language says all workers who find jobs through a website or mobile app are independent contractors, as long as the company running the digital platform does not control schedules, prohibit them from working elsewhere and meets other criteria. Two bills exclude transportation network companies such as Uber.

These laws could have far-reaching consequences. Traditional service companies will struggle to compete with start-ups paying minimal labor costs.

Opponents warn that the Handy bills are so broad that a service company need only launch an app for customers to contract services, and they’d be free to re-classify their employees as independent contractors — leaving workers without social security, health insurance or the protections of unemployment insurance or workers’ comp.

That could destabilize social safety nets as well as shrink available workers’ comp premiums.

A New Classification

Independent contractors need to buy their own insurance, including workers’ compensation. But many don’t, said Hart Brown, executive vice president, COO, Firestorm. They may not realize that in the case of an accident, their personal car and health insurance won’t engage, Brown said.

Matt Zender, vice president, workers’ compensation product manager, AmTrust

Workers’ compensation for gig workers can be hard to find. Some state-sponsored funds provide self-employed contractors’ coverage.  Policies can be expensive though in some high-risk occupations, such as roofing, said Bollinger.

The gig system, where a worker does several different jobs for several different companies, breaks down without portable benefits, said Brown. Portable benefits would follow workers from one workplace engagement to another.

What a portable benefits program would look like is unclear, he said, but some combination of employers, independent contractors and intermediaries (such as a digital platform business or staffing agency) would contribute to the program based on a percentage of each transaction.

There is movement toward portable benefits legislation. The Aspen Institute proposed portable benefits where companies contribute to workers’ benefits based on how much an employee works for them. Uber and SEI together proposed a portable benefits bill to the Washington State Legislature.

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Senator Mark Warner (D. VA) introduced the Portable Benefits for Independent Workers Pilot Program Act for the study of portable benefits, and Congresswoman Suzan DelBene (D. WA) introduced a House companion bill.

Meneghello is skeptical of portable benefits as a long-term solution. “They’re a good first step,” he said, “but they paper over the problem. We need a new category of workers.”

A portable benefits model would open opportunities for the growing Insurtech market. Brad Smith, CEO, Intuit, estimates the gig economy to be about 34 percent of the workforce in 2018, growing to 43 percent by 2020.

The insurance industry reinvented itself from a risk transfer mechanism to a risk management mechanism, Brown said, and now it’s reinventing itself again as risk educator to a new hybrid market. &

Susannah Levine writes about health care, education and technology. She can be reached at [email protected] Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]