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 Manager Focus

Better Together

Risk managers reveal what they value in their brokers.
By: | June 1, 2017 • 11 min read

Michael K. Sheehan, (left) Managing Director, Marsh and Grant Barkey, Director of Risk Management, Motivate International Inc.

Ask a broker what they can do for you and they will tell you. But let’s ask the risk manager.

What do risk managers really need in a broker? And what do the best brokers do to help risk managers succeed in their jobs?

Chet Porembski, system vice president and deputy general counsel, OhioHealth Corp.

Risk managers say it’s a broker who helps them look knowledgeable and prepared to their bosses. It’s someone who sweeps in like a superhero with an ingenious solution to a difficult problem.

Risk managers want to see brokers bring forth better products year after year. They want a broker who shows up at renewal time with new ideas, not just a rubber stamp.

Great brokers embed with the risk management team and learn everything they can about the company and its leaders. They help risk managers prepare and keep tabs throughout the year on changes at the organization with an eye towards planning the future.

“There’s the broker that sees themselves as just a hired ‘vendor,’ or I should say, somebody that basically just does the job at hand,” said Chet Porembski, system vice president and deputy general counsel at OhioHealth Corp.

“And then there’s the broker that views themselves very much as a business partner.  They truly bring added value to the relationship.”

These brokers look at the tough issues the risk manager is facing and bring in the resources to try to help their client in ways even the client might not have thought about yet. They also do advanced planning that makes the risk manager’s job easier when a problem arises.

“That’s the kind of broker I want.” Porembski said.

And that’s the kind of broker many risk managers need more than ever.

“The only way that the relationship is going to be successful is if you build a tremendous amount of trust.” — Frances Clark, director of risk management and insurance, Sentara Healthcare

That’s because risk managers are under increasing pressure these days. They carry more weight as corporations shrink their departments to cut costs.

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Climate change, cyber threats and geopolitical shifts are turning what were once unthinkable losses into risks that are almost commonplace. And this is all happening in an under-insured risk environment, according a study by PwC entitled Broking 2020: Leading from the Front in a New Era of Risk.

Thankfully there are good brokers out there, risk managers say, who can bring more value to a client today than ever before and help ease that fear.

Brokers — the traditional intermediary in the risk transfer chain — do in fact have a tangible and growing role in developing viable and innovative solutions for the risk manager, according to PwC’s study.

They are the “global risk facilitation leaders.”

“[Whatever] organizations are doing in the short term — be this dealing with market instability or just going about day to-day business — they need to be looking at how to keep pace with the sweeping social, technological, economic, environmental and political (STEEP) developments that are transforming the world,” PwC said in the report.

Advisors That Are Getting It Done

Cyber risks are just one growing challenge that all organizations grapple with.

Frances Clark, director of risk management and insurance at Sentara Healthcare, remembers when her broker first suggested that she hold a leadership tabletop cyber drill.

Clark said her broker kept saying, “I know this is going to be a painful experience, but you are going to come out so much better in the long run.”

Frances Clark, director of risk management and insurance, Sentara Healthcare

Her broker was right, and went so far as to help arrange a system-wide drill that included representatives from the legal, finance, security, communications, marketing and medical teams.

They reviewed the many ways a cyber attack can happen and then practiced a response.

“We benefitted greatly from that exercise,” Clark said.

When Doctors on Demand developed a telemedicine app to offer mental health services through mobile devices, the company ran up against insurance limitations across state lines. All states require that the physician giving the advice be licensed in the same state where the patient is located.

The concern was for patient encounters where the patient actually crossed state boundaries during the encounter, due to the utilization of a mobile phone. The patient may have started with a properly licensed physician in the original state, but then crossed into a neighboring state where the physician was not licensed.

Larry Hansard, a regional managing director at Arthur J. Gallagher & Co., and a 2017 Power Broker®, worked to secure medical professional liability coverage without the traditional licensure exclusions placed on medical professionals by insurance carriers.

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The initiative he helped develop actually changes how health care can be delivered to patients. It allows the emerging telemedicine sector to now offer services around the world.

Two-thirds of the risk managers in the PwC Broker 2020 survey labeled their brokers as “trusted advisors.” But the same survey found that some participants see their broker as more of a straightforward service provider rather than as a source for solutions.

The survey results indicate there is plenty of room for brokers to bring more value to clients.

OhioHealth’s brokers meet each year with OhioHealth’s risk management team to review insurance coverages.  And when the health system holds quarterly risk management retreats, the brokers attend. They bring with them education and insights on a broad range of topics, from property insurance markets to cyber solutions.

Porembski’s brokers also collaborate with the risk managers when there’s an upcoming presentation on risk issues to senior management. Sometimes the brokers help prepare the presentation, he said.

“We end up looking exceptionally good to our senior leaders and our board,” he said.

Involving the broker in interactions with leaders outside the traditional risk management team has benefits beyond selling products, he said. It extends the relationship circle.

Clark tries not to think of her brokers as outside vendors just providing a service. She wants them to be as committed and knowledgeable about the organization as she is.

“The only way that the relationship is going to be successful is if you build a tremendous amount of trust,” Clark said.

“You have to be completely open and honest about everything, no matter how bad it is, or how bad it may look to the market or underwriters.”

“Once you establish that trusting relationship, I think everything else falls into place,” she adds.

Sentara underwent significant growth recently, acquiring five hospitals in about six years. The expansion required a vast amount of integration on insurance programs and a merger of risk management departments and claims.

Clark said her brokers rolled up their sleeves and expertly navigated her through the consolidation.

“I can’t reiterate enough how most risk managers don’t know how to deal with an M&A unless you’ve gone through it.”

She said she wouldn’t have been able to manage the risk of the mergers without her broker’s counsel.

Grading the Broker

Mike Lubben, director of global risk management at Henry Crown & Co. in Chicago, sets standard expectations of his insurance brokers: know the exposures, understand how a risk manager has to sell ideas internally and understand the urgency of requests.

He lets his brokers know his expectations with regular report cards, complete with letter grades. And he isn’t shy about giving out Fs.

  • How did the broker service the EPLI coverage?
  • Did the broker provide expertise and coverage analysis?
  • Was there anything creative?
  • Did the broker recommend new endorsements based on the previous exposure?
  • Did the broker recommend any risk mitigation programs?
  • How well did he communicate and help with presentations?

“A good broker will think this is fantastic,” Lubben said.

This method starts the conversation. It helps Lubben establish long relationships with some stellar brokers.  But if the broker misses the mark, Lubben can have a talk with them about ways to do better in the future. Some brokers he has sent away.

Recently a broker failed on what Lubben calls “blocking and tackling,” the basics like returning phone calls within one day and responding promptly to emails.

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Lubben gave him an “F” on those subjects and told him why. The broker still didn’t improve his game and was eventually replaced.

For many people, insurance can seem very routine from renewal to renewal. But a really good broker will break from routine and come back with some kind of enhancement or improvement.

If the renewal is flat with no change in premium, then Clark says she’ll ask, “What are you going to do for me this year?”

The best brokers are always striving for better, she said.

“Without the brokering community, you would be hard pressed to do your job. I really appreciate what the brokers do, they bring a level of expertise that we can’t possibly have on all lines of coverage.” — Mike Lubben, director of global risk management at Henry Crown & Co.

Motivate International Inc., which operates more than half of the bike share fleets in North America, went through a recent renewal.

Their broker, Marsh, explored more than 10 options with different strategies and programs. In the end, after all of that, they decided the expiring coverage was the best fit.

“Those exercises are very valuable for risk managers,” said Grant Barkey, Motivate’s director of risk management.

“As an innovative company committed to delivering best-in-class services, we believe thorough exploration leads to informed decision-making.”

A good broker understands that a company’s day-to-day operations and a highly effective risk management program have implications for what type of policy should be procured, he said.

Brokers need to partner with risk managers to figure out what those options are, and what the markets are saying and then succinctly relay the information to management.
They also need to have the tact and curiosity to inquire about future plans and figure out what resources might be needed to better serve their client.

When PwC surveyed risk managers, most put their insurance carriers and industry groups ahead of their brokers as the primary source of cyber and supply chain risk solutions; yet these areas are still cited as risk managers’ top concerns.

“Becoming the go-to partners for developing and coordinating innovative and effective solutions in these priority risk areas is at the heart of the commercial opportunity for brokers.” PwC said in its report.

“Yet, our survey suggests that these are important areas where brokers are falling short of the market’s demands and therefore need to adapt.

For example, less than a third of respondents are very satisfied with brokers’ analytical and modelling services across a range of areas.”

When participants were asked how their brokers could be more efficient, respondents put risk analysis at the top of PwC’s survey list. Significantly, more than a third also cited ‘big data’ analysis.

Finding the Right Fit

Paul Kim, Co-CBO of U.S. Retail at Aon Risk Solutions, helps match brokers to risk managers. He keeps in mind that insurance companies tend to sell product, while the clients are looking to manage risks. The right broker assists in mapping risks to existing products and also customizing broad solutions, he said.

“The risk manager’s job has become more complex in the current environment, but there are so many tools available for those individuals to make better informed decisions that truly help protect the overall risk profile of their companies,” Kim said.

Paul Kim, Co-CBO of U.S. Retail, Aon Risk Solutions

That’s why finding the right broker should be first and foremost, he said. Look for an individual with strong industry knowledge, product expertise and market relationships. A strong broker is able to effectively communicate what the risk manager’s goals are to the marketplace to be able to execute and achieve those goals.

“Not every broker can do that,” Kim said.

“Not every broker is the right broker.”

PwC said those brokers who quickly master the art and science of identifying ambiguous threats and then mobilize a broad private/public stakeholder pool to economically manage those risks over time will pull ahead of their competition.

“We’re really generalist,” Lubben said.

“Without the brokering community, you would be hard pressed to do your job. I really appreciate what the brokers do, they bring a level of expertise that we can’t possibly have on all lines of coverage.”

When selecting a broker, the risk manager should also take into account the entire organization behind the broker. Ask about the additional support systems that are available to the broker’s clients.

The company should have a deep bench so when the primary broker is out of the office there’s someone else to rely on who is almost as knowledgeable. The broker organization should also be able to assist you with your budgeting and forecasting from a financial risk perspective.

In PwC’s survey of risk managers, nearly three-quarters want analytics from their broker to help inform their decisionmaking, with concerns over new and emerging risks being a strong driver for this demand.

Clark also thinks it is vitally important for a broker to offer a claims advocate, somebody on the outside, when you are dealing with a carrier on a complicated claim.

“Otherwise you are vulnerable to what the carrier says,” Clark said.

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To lead in this new era of risk, it’s also important that brokers forge close relationships with a broader set of stakeholders that includes governments, academia, specialist risk consultancies and even their industry peers, PwC said in the report.

It’s also going to be important to develop shared databases and research capabilities.

In turn, brokers need to assure this diverse stakeholder group that they are the right party to lead.

Clark, at Sentara Healthcare, said she knows what her risk exposures are today, but she’d like her brokers to anticipate her needs before she does.

“It’s kind of crazy, but amazingly some of them do it,” Clark said.

The broker will also use past experience and industry knowledge to anticipate where policy terms and conditions can be tweaked and improved upon.

“They will, say, advise us that we need to change this policy language, and then a year later you have a claim on that and you thank your lucky stars that they changed it,” Clark said.

“It is amazing to me every time it happens.”  &

Juliann Walsh is a staff writer at Risk & Insurance. She can be reached at [email protected]