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Tae Phillips Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

tae.phillips@ogletree.com

205-714-4409 (Direct Dial-Office)

205-281-8849 (Cell)

Presented by:

Surprisingly Simple(!) – Drug and Alcohol Testing Policies and Reasonable Suspicion of Impairment

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Agenda

  • End of the Book First . . .

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  • Alabama Drug Test Laws
    • Other States
  • A Quick Word on Marijuana

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  • Policy Considerations and Strategies
  • Reasonable Suspicion Training
  • Employer Action Items

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  • . . . End of the Book Last

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End of the Book First . . .

  • Drug and Alcohol Policies - Think Business-Centric Goals First, Legal Issues Second

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  • Don’t Forget about Pot

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  • Create Your Policy – No Right or Wrong Way to Do It

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  • Conduct (EFFECTIVE) Training

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Alabama’s State Drug Test Law

  • VOLUNTARY
    • AL Drug Free Workplace Program, Ala. Code 25-5-330 through 25-5-340
  • Compliance = 5% workers’ compensation premium discount

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Alabama’s State Drug Test Law

  • Requirements:
    • 60-day written notice required prior to testing program implementation
    • Must provide, upon request, a copy of test results
    • Employer pays all costs of testing
    • Annual training and education
    • Must use a certified lab
    • Policy language

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Alabama’s State Drug Test Law

  • Policy Requirements:
    • Types of testing
    • Actions an employer may take for a positive test
    • Consequences of refusing to test
    • Statement advising of existence of AL Drug Free Workplace Act
    • Statement on confidentiality
    • Statement advising of EAP/rehab opportunities, or references to such programs
    • Statement that positive test result may be contested or explained within 5 work days of notice

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Alabama’s State Drug Test Law

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Other State Drug Test Laws

  • Some are Mandatory
    • Common Issues: Who, When, How

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  • Some are Voluntary

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  • Some are Nonexistent

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Marijuana in the Workplace 101

  • Four Things to Remember:

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    • 1. Marijuana Laws are Very State Specific

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    • 2. Marijuana Laws Change Often

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    • 3. Marijuana in the Workplace: Broader and More Complicated Than You Think

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    • 4. Marijuana in the Workplace: Sometimes it is Misleading

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Alabama and Marijuana

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What Do We Do Now?

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What Do You “WANT” to Do?

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Drug and Alcohol Test Policy Considerations and Strategies

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  • Program – First

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  • Policy – Second

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Drug and Alcohol Test Policy Considerations and Strategies

  • Drug and Alcohol Testing Program – Think About:

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    • Industry / Job Position
    • Company Culture
    • Recruiting and Retention
    • Logistics
    • Costs
    • HR Infrastructure
    • Environmental Health and Safety Infrastructure
    • Regulatory Oversight (e.g., DOT)
    • Multistate versus Alabama Only Footprint
    • Appetite for Legal Risk

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Drug Test Policy Considerations and Strategies

  • 1. Comply (or Not) with AL Drug-Free Workplace Program?
  • 2. When (or When Not) to Conduct Drug Testing?
  • 3. What (or What Not) to Test For?
  • 4. What (or What Not) Should a Policy Say?
  • 5. What (or What Not) to do with a Positive Test Result?

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Reasonable Suspicion Training

  • Remember Your Audience
    • Managers, Supervisors, etc.

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  • Remember Your Stated Goals
    • Safety

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  • Remember Your Other Goals
    • Creation of Good Facts and Evidence

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Reasonable Suspicion Training

  • Not Effective
    • Training people to be police officers, doctors, or scientists
    • Lecturing people about substance abuse
    • Training on “impairment” instead of “process and procedure”

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  • Mistakes
    • Thinking that people “want” to be in a training session
    • Thinking that people won’t be inherently self-centered
    • Thinking that people won’t have road blocks in their mind dissuading them from “running the playbook”

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What Next? Action Items

  • Meet with Stakeholders and Decide What You Want to Do

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    • (then)

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  • Develop Your Program
  • Create or Tweak Your Policy
  • Train Your People

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Thank you!

Tae Phillips

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

420 20th Street North, Suite 1900 | Birmingham, Alabama 35203

tae.phillips@ogletree.com

Phone: 205.714.4409 (Office) / 205.281.8849 (Cell)

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