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PRIVATE EMPLOYER DRUG & ALCOHOL TESTING: CONSIDERATIONS IN IMPLEMENTING AND MAINTAINING A TESTING PROGRAM DECEMBER 20, 2013 Ann Holden Kendell 666 Grand Avenue Suite 2000 Ruan Center Des Moines, IA 50309 515-242-2450 direct 515-323-8550 direct fax kendell@brownwinick.com 2013 Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.

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Main Questions to Ask: 1.What triggered our interest in a testing program? Do most businesses in our industry do testing? Is our insurance carrier suggesting it?) 2.If there was a business reason triggering the interest, how compelling is that business interest? 3.Is the monetary and administrative cost worth it? 4.Is there a monetary gain to implementing a program? Reduction in insurance premium? 5.Is there a history of issues with impairment at the workplace? If so, what types alcohol, drugs or both? 6.What substances do we want to test for drugs, alcohol or both? 7.What type of testing do we want pre-employment, reasonable suspicion, post-accident, rehabilitation and/or random? 8.How will we administer the program? What person will oversee this program for the company? What entity will do our testing?

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The Statistics The source for the following: Results from the 2012 National Survey on Drug Use and Health: Summary of National Findings U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Substance Abuse and Mental Health Services Administration Center for Behavioral Health Statistics and Quality

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The Statistics Employment Current illicit drug use differed by employment status in 2012. Among adults aged 18 or older, the rate of current illicit drug use was higher for those who were unemployed (18.1 percent) than for those who were employed full time (8.9 percent), employed part time (12.5 percent), or "other" (6.3 percent) (which includes students, persons keeping house or caring for children full time, retired or disabled persons, or other persons not in the labor force) (Figure 2.13). The percentage of adults employed full time who were current illicit drug users increased between 2011 (8.0 percent) and 2012 (8.9 percent).Figure 2.13

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The Statistics

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Geographic Area Among persons aged 12 or older, the rate of current illicit drug use in 2012 was 11.7 percent in the West, 9.6 percent in the Northeast, 8.6 percent in the Midwest, and 7.7 percent in the South. In 2012, the rate of current illicit drug use among persons aged 12 or older was 9.9 percent in large metropolitan areas, 9.2 percent in small metropolitan areas, and 6.8 percent in nonmetropolitan areas (Figure 2.14). Within nonmetropolitan areas, the rate was 8.3 percent in urbanized counties, 5.9 percent in less urbanized counties, and 4.8 percent in completely rural counties.Figure 2.14

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The Statistics

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Education Illicit drug use in 2012 varied by the educational status of adults aged 18 or older. The rate of current illicit drug use was lower among college graduates (6.6 percent) than those with some college education (10.2 percent), high school graduates who did not attend college (9.8 percent), and those who had not graduated from high school (11.1 percent). Additionally, the 2012 rate of current illicit drug use among college graduates aged 18 or older was higher than the 2011 rate of 5.4 percent.

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The Statistics In 2012, 7.2 percent of youths aged 12 to 17 were current users of marijuana, 2.8 percent were current nonmedical users of psychotherapeutic drugs, 0.8 percent were current users of inhalants, 0.6 percent were current users of hallucinogens, and 0.1 percent were current users of cocaine. Among 12 or 13 year olds, 1.7 percent used psychotherapeutic drugs nonmedically (with 1.5 percent using pain relievers nonmedically), 1.2 percent used marijuana, and 0.9 percent used inhalants. Among 14 or 15 year olds, 6.1 percent used marijuana, 2.5 percent used psychotherapeutic drugs nonmedically (with 2.2 percent using pain relievers nonmedically), 0.7 percent used inhalants, and 0.5 percent used hallucinogens.

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The Statistics Among 16 or 17 year olds, 14.0 percent used marijuana, 4.0 percent used psychotherapeutic drugs nonmedically (with 3.1 percent using pain relievers nonmedically), 1.2 percent used hallucinogens, 0.7 percent used inhalants, and 0.2 percent used cocaine. The percentage of youths aged 16 or 17 in 2012 who were current users of cocaine was lower than in 2011 (0.5 percent). In 2012, the rate of current illicit drug use was higher among young adults aged 18 to 25 (21.3 percent) than among youths aged 12 to 17 (9.5 percent) and adults aged 26 or older (7.0 percent). Among young adults aged 18 to 25, the 2012 rate was similar to the rates in 2009 to 2011 (ranging from 21.4 to 21.6 percent), but it was higher than the rates in 2004 to 2008 (ranging from 19.4 to 20.1 percent) and in 2002 (20.2 percent).

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The Statistics In 2012, the rate of current illicit drug use among adults aged 26 or older was 7.0 percent, including rates of 5.3 percent for current use of marijuana and 2.1 percent for current nonmedical use of psychotherapeutic drugs. Less than 1 percent of adults in this age group were current users of cocaine (0.6 percent), hallucinogens (0.2 percent), heroin (0.1 percent), and inhalants (0.1 percent). The 2012 rate of current illicit drug use was higher than the rate in 2011 and in 2002 through 2009. The 2012 rate of current marijuana use was similar to the rates in 2010 and 2011 (4.8 percent in each year), but it was higher than the rates from 2002 through 2009.

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The Statistics Among adults aged 50 to 64, the rate of current illicit drug use has increased during the past decade. For adults aged 50 to 54, the rate increased from 3.4 percent in 2002 to 7.2 percent in 2012. Among those aged 55 to 59, the rate of current illicit drug use increased from 1.9 percent in 2002 to 6.6 percent in 2012. Among those aged 60 to 64, the rate increased from 1.1 percent in 2003 to 3.6 percent in 2012. These patterns and trends partially reflect the aging into these age groups of members of the baby boom cohort, whose rates of illicit drug use have been higher than those of older cohorts. The baby boom cohort refers to persons born in the United States after World War II between 1946 and 1964 (Han, Gfroerer, & Colliver, 2009a).

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The Statistics Alcohol The rate of current alcohol use was 64.8 percent for full-time employed adults aged 18 or older in 2012, which was higher than the rate for unemployed adults (54.9 percent). The rates of binge drinking were similar for adults who were employed full time and those who were unemployed (29.9 and 32.0 percent, respectively). Among adults in 2012, most binge and heavy alcohol users were employed. Among the 57.9 million adults who were binge drinkers, 43.6 million (75.4 percent) were employed either full or part time. Among the 16.7 million adults who were heavy drinkers, 12.5 million (74.7 percent) were employed.

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The Statistics The rate of past month alcohol use for people aged 12 or older in 2012 was lowest in the South (48.3 percent), followed by the West (50.7 percent), then the Midwest (55.4 percent), then the Northeast (57.7 percent). In 2012, the rates of past month alcohol use among persons aged 12 or older in large and small metropolitan areas (53.5 and 53.1 percent, respectively) were higher than in nonmetropolitan areas (45.6 percent). Rates of binge drinking were similar in large and small metropolitan areas (23.4 and 22.9 percent, respectively). However, binge drinking among persons aged 12 or older was less prevalent in nonmetropolitan areas (21.4 percent) than in large metropolitan areas. Among youths aged 12 to 17 in 2012, the rates of binge alcohol use in large metropolitan and small metropolitan areas (6.9 and 6.8 percent, respectively) were lower than the rate for youths in nonmetropolitan areas (9.2 percent).

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The Statistics

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BUSINESS REASONS FOR A TESTING PROGRAM Addressing Questions 1 4: Prevalence in an industry can be a good measuring stick Increase or decrease in insurance costs Customer or contract requirement Assessment of costs/benefits the more compelling the business interest, it can offset the monetary and administrative costs of a program

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HISTORY OF ISSUES Prior history through accidents or other behavioral issues may indicate that a testing program is a good idea In review of the prior history what substances were at issue?

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LA CARTE SELECTING THE TESTING PROGRAM FOR YOU Based upon responses to the previous questions, you will have some idea as to the types of substances that are a priority for testing. Based upon your objectives, you will see what types of testing is appropriate screening applicants, addressing impairment problems and/or random testing to keep employees from using drugs.

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THE LEGAL REQUIREMENTS AS PART OF THE COST/BENEFIT ANALYSIS Iowa Code Chapter 730.5 requires the following prior to testing: Written policy provided to applicants/employees prior to testing (if a minor, to the parent or guardian by certified mail, return receipt requested) Supervisor training Awareness program EAP/resource file If doing random testing determination of employee population to be tested

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WRITTEN POLICY The written policy must: Include the types of testing done Include the substances the testing will reveal Advise of opportunity to provide relevant medical information to MRO Advise of consequences for test refusal or a positive test result (uniform disciplinary actions or rehabilitation) and that the actions taken on a positive test result are taken based solely on the results of the test If rehabilitation is required, the employer shall not take adverse employment action against the employee so long as the employee complies with the requirements of rehabilitation and successfully completes rehabilitation. Provide information on any employee assistance program or the resource file maintained by the company. For alcohol testing, the employer shall establish in the written policy a standard for alcohol concentration which shall be deemed to violate the policy. The standard for alcohol concentration shall not be less than.04, expressed in terms of grams of alcohol per two hundred ten liters of breath, or its equivalent. Obtain the signature of the applicant/employee acknowledging receipt of the policy

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SUPERVISOR TRAINING Training for supervisory personnel involved with drug or alcohol testing: A minimum of two hours of initial training Annual one hour training Training shall include: information concerning the recognition of evidence of employee alcohol and other drug abuse, the documentation and corroboration of employee alcohol and other drug abuse, and the referral of employees who abuse alcohol or other drugs to the employee assistance program or to the resource file maintained by the employer

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DETERMINATION OF EMPLOYEE POPULATION TO BE TESTED (RANDOM TESTING) Other than employees who are not scheduled to be at work or pursuant to a collective bargaining agreement, the employer may designate: The entire employee population at a particular work site. The entire full-time active employee population at a particular work site. All employees at a particular work site who are in a pool of employees in a safety-sensitive position. Safety-sensitive - A job where an accident can cause loss of life, serious bodily injury, significant property or environmental damage, including the immediate supervision of such jobs. May have more than one pool of safety-sensitive positions, but an employee may not be in more than one pool (cannot increase odds of selection)

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RANDOM TESTING General Requirements: Employer can have no control over random selection independent entity must be used The independent entity must use a computer-based random number generator using SSNs, payroll ID no., etc. Cannot random test all employees must have equal chance of selection or non-selection

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QUIRKS Pre-offer testing for drugs is permitted Only post-offer testing for alcohol Pre-employment testing must be done before person starts working Pre-employment testing does not provide for a second confirmatory test of a positive test Pre-employment testing does not require written notice of results to be sent via certified mail, return receipt requested (just provided notice in writing of the results of the test, of the name and address of the medical review officer who made the report, and of the prospective employees right to request records) current employees receive notice of results and right to re-test at a laboratory of employees choice at employees cost sent via certified mail, return receipt requested Employees are paid for mileage for testing and for time spent applicants are not

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MORE QUIRKS Alcohol testing may require rehabilitation to be offered: 50 employees or more Employee at issue has worked 12 of last 18 months First positive test Employee wants to go to rehabilitation Payment for rehab pursuant to any insurance covering employee; any cost not covered split by employee/company 50/50 up to $2,000 Only samples allowed are urine, saliva & breath, but a blood test performed by a doctor in treating an employee following a work place accident may be used by the employer. Hair is never used. Post-rehabilitation testing is allowed and the statute does not put limitations on it BUT, if employee is subjected to testing that does not fit the situations outlined in the statute, it will be discriminatory treatment in violation of the ADAAA for disability discrimination.

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COST OF FAILURE TO COMPLY Employer has burden to prove compliance If 730.5 is violated, it can mean: reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate attorney fees and court costs an injunction brought by an aggrieved employee or prospective employee, the county attorney, or the attorney general

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COST OF FAILURE TO COMPLY Violation of ADAAA/ICRA for disability discrimination reinstatement, with or without back pay, or any other equitable relief as the court deems appropriate front pay emotional distress punitive damages attorney fees and court costs an injunction brought by an aggrieved employee

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Thank you! Ann Holden Kendell 666 Grand Avenue Suite 2000 Ruan Center Des Moines, IA 50309 515-242-2450 direct 515-323-8550 direct fax kendell@brownwinick.com 2013 Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.