Waste companies face a number of staffing challenges related to recruitment and retention, but one of the most important considerations for cultivating a healthy and productive workforce involves identifying and addressing potential substance abuse issues before they become a problem.
With this challenge in mind, the Solid Waste Association of North America (SWANA) hosted a webinar on Nov. 10 titled, “Controlling Drugs and Alcohol in the Workplace: Employer Liabilities and Solutions Program.”
Panelists on the webinar included Mark Lies, partner at Chicago-based law firm Seyfarth Shaw LLP, and Adam Young, associate at Seyfarth Shaw LLP. Seyfarth Shaw LLP provides advisory, litigation and transactional legal services to clients around the world through its network of 900 lawyers across 16 offices. Among its areas of expertise are matters concerning background checks, drug testing and other facets of employment law.
The ramifications of legalization
Among the central challenges for employers concerned with employee drug use is keeping up with shifting legislation. As more states move towards legalization and decriminalization, specifically as it pertains to cannabis, a growing number of businesses are being forced to rethink their policies due to an escalation of positive drug tests.
“It’s now up to 15 states, and because California is so populous, 110 million Americans now live in a state where recreational marijuana is lawful,” Young says. “That doesn’t include all the states where CBD products, or low THC products [have been made lawful]. … In the short term, because these laws haven’t been around for too long, it seems to result in more employment-related impairments or more employment-related positive drug tests.”
"You’re 70 percent more likely to have a car accident, and you’re 65 percent more likely to have a heavy equipment accident if you’re impaired at any level by illegal drugs.” –Adam Young, associate at Seyfarth Shaw LLP.
Young noted that Oregon, which just decriminalized all hard drugs in November, would be an interesting case study to watch. If more states follow suit with similar policies, he says that escalating positive drug tests could be the result across the U.S.
Lies says that some of the primary problems caused in the workplace by employees abusing drugs and alcohol include injuries and accidents to the offender, other employees and members of the public; lack of performance or poor output that can increase the workload on others; theft; increased liability to the company; and a greater potential for workplace violence.
These consequences are especially concerning due to the number of Americans suffering from drug and alcohol addiction in the U.S. Young noted that 15.1 million Americans suffer from alcohol addiction (including 1 in 13 working adults), 7 million have an addiction to cannabis, and 4.8 million have an addiction to opioids.
Specific to the waste sector, on-the-job impairment can have stark ramifications. This is especially true for those who may be required to operate equipment or machinery that could be dangerous while under the influence.
“You’re 70 percent more likely to have a car accident, and you’re 65 percent more likely to have a heavy equipment accident if you’re impaired at any level by illegal drugs,” Young says.
Young notes that the National Safety Council recommends a zero-tolerance policy for employees working in safety-sensitive positions in order to prevent accidents and injuries.
One best practice to weed out employees who may have substance abuse issues is to mandate a pre-employment drug test—especially for those in these safety-sensitive positions. Lies says that, generally, conducting these tests is lawful in most states. In states where pre-employment tests are regulated, he says that testing is typically confined to applicants who have been made conditional offers of employment. Specific to alcohol, Lies says that pre-employment tests are usually only allowed for those who have received conditional offers of employment since it is otherwise legal.
In addition to pre-employment testing, reasonable cause testing can help identify those who may be impaired on the job based on appearance, behavior, speech or body odors.
“This requires training of your supervisors about behavior, about inability to communicate well, slurred speech, physical reactions or lack of coordination, or odors so that you may have a basis to say, ‘I want you to be tested because there is objective evidence,’” Lies says.
For reasonable cause testing, Lies advocates having two supervisors involved to corroborate the fact that there was objective cause for a test.
While pre-employment and reasonable cause testing require the employer’s discretion to determine the merits of a test, Young says that post-accident testing is more a matter of proper due diligence that can be enforced.
Young says that this kind of testing is most important for identifying the cause of accidents and injuries and absolving those where there may be no impairment. These tests are generally acceptable from state to state, especially when the employer has a reasonable suspicion to believe that the employee may have been under the influence at the time of the accident or injury.
"This requires training of your supervisors about behavior, about inability to communicate well, slurred speech, physical reactions or lack of coordination, or odors so that you may have a basis to say, ‘I want you to be tested because there is objective evidence.’” –Mark Lies, partner at Seyfarth Shaw LLP
Lies says that other forms of testing, such as random testing and return-to-duty testing, are often acceptable as long as they’re done in a non-discriminatory way that doesn’t single out specific individuals or subsets of the employee population.
“The most common [return-to-duty] testing situation is when an employee has violated your drug and alcohol policy and you are going to consider giving them a second chance. If they’re going to come back, they have to submit to ongoing drug tests and let you be made aware of the results,” Lies says.
Summarizing the importance of testing, Young notes that of the OSHA-related cases he’s worked on where there has been a worker-related fatality, 30 to 40 percent have involved workers being found with drugs or alcohol in their system as part of the toxicology report.
This statistic helps support “near miss” testing, which is when there is an accident where there wasn’t, but could have been, an employee injury. Being proactive in issuing tests for such incidences can help spot potential substance abuse before it results in injury or death.
Lies and Young contend that employers have the right to discharge and discipline employees for violations of company rules, misconduct or insubordination relative to drug-related behaviors.
Further, they note that courts routinely uphold that employees cannot blame work misconduct on alcoholism or drug addiction. Citing previous court cases, Young says that employers are generally backed by legal precedent when employees are terminated or otherwise reprimanded for instances of showing up to work intoxicated or for facing legal action for operating a vehicle under the influence while off duty—even when the employee uses addiction as a reason for such transgressions.
Although it is difficult to make blanket statements regarding how individual employers are allowed to enforce drug and alcohol policies because of differences in state laws, Lies and Young note that employers are generally empowered to implement policies against substance use by relying on federal illegality, especially when this involves federal contractors and those with safety-sensitive positions.
Specific laws protecting employers include the Controlled Substances Act, which deems marijuana to be illegal and preempts state medical marijuana laws; the Drug Free Workplace Act that applies to federal contractors and requires a drug-free workplace; and the Americans with Disabilities Act that does not protect individuals “currently engaging in the illegal use of drugs.”
Conversely, employers should be aware of what actions are not protected under law, such as discriminating against a person when they have been rehabilitated and are not currently using drugs, discriminating against employees for attending Alcoholics Anonymous or Narcotics Anonymous (or similar) meetings, or holding recovering addicts to a higher standard of performance or attendance than other employees. Further, medical inquiries into an employee’s history must be job-related and consistent with business necessity.
Although it is incumbent on every employer to understand the laws governing their business, the one constant irrespective of location is that waste companies should have comprehensive policies and guidelines in place that govern drug and alcohol use. Failure to do so can invite injury, fines and other legal action that could have been mitigated with more diligent oversight and enforcement.