Tag: drug testing

February 28, 2024

Employee Drug and Alcohol Issues (Webinar Recap)

On February 28, 2024, I presented a complimentary webinar entitled “Employee Drug and Alcohol Issues”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Medical and Recreational Marijuana Use
Drug and Alcohol Testing
Policies and Procedures
Discipline

and much more!

Employers hate to be faced with issues related to employee drug and alcohol use. Unfortunately, there’s no avoiding the possibility that you will have to deal with these issues as part of your human resources duties.

This webinar addresses the latest updates related to the legalization of marijuana in New York as well as general requirements and best practices related to employee drug use. If you currently rely on drug testing or are considering using it with your employees, make sure you understand how the laws interact to regulate that process (or not!). Plus, we conclude with a discussion of related discipline issues (and alternatives).

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Employee Drug and Alcohol Issues”

What do you do when one of your employees reports to work under the influence? Has drug or alcohol use contributed to performance issues, employee disputes, or safety concerns?

Most employers have many options in how they deal with workplace drug and alcohol issues. Yes, there are many laws that might come into play. And they don’t affect all employers equally. Watch this webinar to understand better how the legal issues interplay with critical business factors to keep your organization in compliance.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Management Law email newsletter to be among the first to know when registration is open for upcoming programs! Plus, follow us on LinkedIn for updates on important employment law issues.

December 19, 2018

Top Posts of 2018

As the year ends, we again review the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2018?

These posts reflect some topics that most interested New York employers in 2018. Do they also suggest what will be top of mind in 2019?

Curious about last year? Click to see what posts made the list in 2017.

2019 New York Minimum Wage

Like last year, our post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law caught readers’ eye.

Remember these changes take effect on December 31, 2018, not January 1st. If you haven’t adjusted accordingly yet, don’t delay any longer!

And there are still more increases scheduled for the years to come. This post includes charts showing those planned increases.

Sexual Harassment Draws More Attention

Well-publicized harassment allegations beginning in October 2017 put sexual harassment prevention on the top of our minds this year. Both the federal and New York state governments took deliberate action to address the unfortunate reality.

In April 2018, the New York Legislature enacted extensive legal requirements aimed at workplace sexual harassment. These included the obligation that all employers in the state adopt written sexual harassment policies and provide annual sexual harassment prevention training to all employees.

Employers were eager to learn more about what the New York Department of Labor would expect from them to meet the policy and training requirements. This made “First Look: NYS Model Sexual Harassment Policy & Training” one of our top posts of 2018. When the DOL updated its guidance closer to the October 9, 2018 effective date, we likewise offered an update.

In October, we also received telling data from the U.S. Equal Employment Opportunity Commission (EEOC). We examined this in “EEOC Releases 2018 Sexual Harassment Statistics.” The EEOC initially reported that after steadily declining over the previous decade, sexual harassment charges went up more than 12% in the fiscal year ending September 2018. In “EEOC: 2018 Sexual Harassment Data Even Worse” we discussed the final numbers showing a 13.6% increase.

The FMLA Is Always a Hot Topic

All the hype in 2017 was about the launch of New York’s Paid Family Leave Program. In 2018, the federal Family & Medical Leave Act (FMLA) turned 25 years old. But employers remain interested in learning more about what it means and how it works.

One of the most viewed posts of the year contrasted these two significant legal regimes. “New York Paid Family Leave vs. FMLA” takes a look at employer coverage, employee eligibility, qualifying circumstances, compensation, and other issues under these laws.

And after a year of learning when an employee might have rights under the New York Paid Family Leave, employers became even more interested in double checking “Who Is an FMLA Eligible Employee?”

Drugs in the Workplace

Another issue that hasn’t gone away is employee drug use. Amidst a continuing national debate over the legalization of marijuana, readers were interested in what existing employment laws say about drugs generally.

What Does the Drug-Free Workplace Act Require?

This federal law doesn’t go as far as most people probably think. First, it only applies to businesses that have sufficiently large contracts with the federal government.

The Drug-Free Workplace Act requires these covered employers to adopt a drug-free workplace policy and establish a drug-free awareness program. However, it does not force these companies to fire employees who bring drugs to work or work under the influence of illegal drugs.

Drug Testing New York Employees

Employers in New York (and most other states in the U.S.) have broad rights to test employees for drug use. But many sources of law touch on the subject. That’s probably why this post was so popular with readers trying to determine their rights and obligations in various situations. (It was the #1 most viewed post on the New York Management Law Blog in 2018!)

Vacation Pay in New York

New York employers don’t have to let employees take paid vacations. But if they do offer a vacation benefit, the parameters must be clearly described in writing.

If you haven’t done so recently, now’s a good time to review your vacation pay policy. Use this post as a starting point.

What is Executive Order 11246?

You’d be surprised how many people asked that question in 2018. (I was.) This was actually our second most viewed post of the year. So, what is it?

Signed by President Lyndon B. Johnson in 1965, this Executive Order imposes anti-discrimination and affirmative action requirements upon covered federal contractors. For example, companies with more than 50 employees and a contract with the U.S. government for at least $50,000 must maintain written affirmative action plans.

Although the Executive Order remains in place, the federal Office of Federal Contract Compliance (OFCCP), which oversees Executive Order 11246, has occasionally made the news over the past year or so. It recently announced several new policies on November 30, 2018.

What Are Employees Up To?

Two other top posts of 2018 addressed the reality that your employees don’t always want to be working (at least, for you).

Should You Let Employees Watch the World Cup?

Though less popular in the United States, the 2018 FIFA World Cup was one of the biggest global events of the year. For one month this summer, fans around the world cheered their favorite soccer nations. Before the contest began, we considered some pros and cons of letting employees watch the matches during work time.

Your Employee Has a Side Hustle

Many employees with regular full- or part-time jobs are also working on a personal business venture on the side. This is not necessarily good or bad in itself. Situations vary. But this post raised many legal considerations for employers ranging from conflicts of interests to federal leave laws.

Don’t Stop at the Top Posts of 2018!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2019.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to our monthly email newsletter. It not only recaps our recent blog posts, but also announces upcoming free webinars that help you stay in compliance.

See you in 2019!

October 24, 2018

OSHA Permits Post-Accident Drug Testing

On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) issued a clarification of its position on post-accident drug testing. The new guidance addresses commentary that OSHA included with a May 2016 anti-retaliation rule. OSHA now asserts that the rule “does not prohibit . . . post-incident drug testing.”

[Note that the Drug-Free Workplace Act does not require any employers to drug test employees.]

29 C.F.R. § 1904.35

That’s the citation for the rule OSHA amended on May 12, 2016, to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.

Specifically, 29 C.F.R. § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

The rule itself does not mention drug testing. But OSHA’s 2016 commentary accompanying it did.

At that time, the agency wrote: “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” It then went on to say, “this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

OSHA’s 2016 commentary included the following supposed standard: “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

2018 “Clarification”

It’s hard to argue that OSHA’s recent announcement clarifies the above language from the 2016 commentary. Instead, it interprets the text of the rule itself, which never mentioned drug testing in the first place. Obviously, the current administration in D.C. has a different take on this issue than the previous one.

In the October 11, 2018 memorandum, OSHA explains that “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

To emphasize this change in position, the new OSHA directive adds that “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It then specifically identifies four OSHA documents from October and November 2016.

When to Conduct Post-Accident Drug Testing

OSHA’s new guidance memorandum approves of the following forms of drug testing:

Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

The last item in this list seems to set a new standard for post-accident drug testing under the anti-retaliation rule. It essentially replaces the 2016 “likely to have contributed to the incident” and “accurately identify impairment caused by drug use” analysis with a more straightforward permissive approach. That is, OSHA now suggests that post-accident testing is presumptively lawful. But if the employer only tests the employee who reported the injury, then this would imply a retaliatory purpose.

In other words, the takeaway for employers is that you generally can drug test employees following a workplace incident. But don’t do it in a way that only targets the reporter, hence discouraging people from reporting safety issues.

Employers May Revisit Post-Accident Drug Testing Protocols

Companies that changed their practices in response to the 2016 rule and OSHA commentary may now reconsider their approach.

To be clear, OSHA’s new interpretation does not require employers to conduct post-accident drug testing. Rather, the clarification relieves employers of much of the concern and uncertainty that the 2016 OSHA commentary created.

Employers who do utilize post-accident drug testing should do so rationally and consistently. Ad hoc or inconsistent testing could lead employees to complain of retaliation under OSHA rules or other legal authority.

New York employers should also read “Drug Testing New York Employers.”