Katie Anderson Pete Thompson Dumb and Dumber: Dallas ... · PDF fileimpact a person’s susceptibility. ... • Woman was well‐regarded substitute teacher –certified, experienced,

1

Dumb and Dumber: Showing Up to Work Under the Influence…. How the District Should Respond To Prevent a Scary Sequel

Katie Anderson

Pete Thompson

Dallas Office

Don’t let this be your employees… 2

2

3

Alcohol• Long complicated history with alcohol in the US

• 1920: 18th Amendment to the US Constitution• Prohibition of intoxicating liquors by declaring the production, transport

and sale of alcohol illegal

• BUT did not ban the consumption or private possession of alcohol

• Crime rates soared as gangsters became rich on the black market for alcohol

• Corruption was an issue with law enforcement

• 1933: 21st Amendment to the US Constitution (repealed)

• In 2017, total alcoholic beverage sales in the US are over $211,000,000,0000 ($211 billion)

4

3

Alcohol

• Drinking Problems

• The CDC estimates that nearly 14 million US citizens or 1 out of every 13 adults abuses alcohol or has an alcoholism problem.

• People aged 12‐20 responsible for 11% of alcohol consumption in US – 90% of this alcohol consumed by binge drinking (4 drinks/women, 5 drinks/men).

• 23% of adult men binge drink five times per month.

• 12% of adult woman binge drink three times per month.

• Excessive alcohol use is responsible for 88,000 deaths in US each year.

Source: Fact Sheets: Alcohol and Public Health, CENTERS FOR DISEASE CONTROL AND PREVENTION.

5

Drugs

• Illegal Drugs• Street drugs (ecstasy, amphetamines, cocaine, crack, methamphetamine,

heroin, etc.)• Synthetic drugs (bath salts [LSD], spice/K2 [pot], N‐bomb [LSD])

• Legal Drugs• OTC drugs

• Cold meds Dextromethorphan (DXM)• Cough medicine (purple drank)

• Rx drugs• Benzodiazepine (benzos) used to sedate, reduce anxiety and relax the muscles (includes Xanax,

Ativan, Halcio, Klonopin, Valium, etc.)• Opioids ‐ narcotic pain medications used to treat pain (hydrocodone, OxyContin, Vicodin)• Methylphenidate ‐ Schedule II narcotics (include Ritalin, a/k/a diet coke, kiddie coke, rids,

Skittles, Smarties, vitamin R)

• MarijuanaSource: Dr. Jonathan Horey, Bath Salts Smiles and Spice: The Dangers of Synthetic Drugs, HUFFINGTON POST (June 2, 2016), https://www.huffingtonpost.com/dr‐jonathan‐horey/bath‐salts‐smiles‐and‐spi_b_10260468.html

6

4

Drugs

• Opioid Epidemic

• Every day, 91 Americans die from an opioid overdose.

• Joint Commission – non‐profit that certifies health care organizations put out new guidelines including:• Requiring hospitals to have leadership team that oversees prescription of

opioids

• Provide staff with resources to improve pain assessment

• Identify opioid treatment programs for patient referrals

Source: See Opioid Overdose Crisis, NATIONAL INSTITUTE ON DRUG ABUSE (January 2018). https://www.drugabuse.gov/drugs‐

abuse/opioids/opioid‐overdose‐crisis.

Source: Joint Commission Enhances Pain Assessment and Management Requirements for Accredited Hospitals, THE JOINT COMMISSION PERSPECTIVES (July 2017).

6

Drugs

• Opioid Epidemic

• In further response to the crisis, on November 1, 2017, Governor Chris Christie, Chairman of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, submitted the Commission’s Final report with fifty six (56) recommendations to combat the crisis. Those recommendations include:• Block grant federal funding for opioid related activities

• Create wide‐reaching media campaign

Source: Chairman’s Letter, THE PRESIDENT’S COMMISSION ON COMBATTING DRUG ADDICTION AND THE OPIOID CRISIS (November 1, 2017).

6

5

Drugs

• Marijuana• Laws for recreational use in Washington, Oregon, California, Nevada,

Colorado, Maine, Massachusetts, Alaska, and the District of Columbia.

• 29 states have now legalized marijuana broadly for medical use.

• On January 4, 2018, Attorney General Jeff Sessions issued an enforcement memo that rescinded previous guidance which essentially enabled states to legalize marijuana without federal intervention.

• Created confusion on whether it's okay to grow, buy or use marijuana in states where it's legal, since long‐standing federal law prohibits it.

Source: State Marijuana Laws in 2017 Map, GOVERNING THE STATES AND LOCALITIES. http://www.governing.com/gov‐data/state‐

marijuana‐laws‐map‐medical‐recreational.html.

Source: Jeff Sessions ends policy that let legal pot flourish, CBS NEWS (January 4, 2017), https://www.cbsnews.com/news/jeff‐sessions‐marijuana‐policy‐announcement/.

6

But not MY employees….• Of the estimated 54 million adult binge drinkers, 80% are

employed.*• Of the estimated 20 million adults with substance abuse

problems, 61% have been employed full‐time.*• Estimates that 9‐10% of full‐time workforce have a

current drug or alcohol problem.**• Growing number of districts are exploring random drug

testing of staff in a safety sensitive position, but this is still uncommon.

*Source: Nancy E. Marion and William M. Oliver, Drugs in American Society: An Encyclopedia of History, Politics, Culture, and the Law, ABC‐CLIO (2014).

**Source: Robert Preidt, Substance abuse a problem for America’ s workforce, CBS NEWS (April 16, 2015). https://www.cbsnews.com/news/substance‐abuse‐a‐problem‐for‐americas‐workforce/.

7

6

ADA and ADA Amendments of 2008

• Alcoholism can qualify as a disability under Americans with Disability Act (ADA).

• ADA defines disability as:

• a physical or mental impairment that substantially limits one or more of the major life activities of an individual;

• a record of such an impairment; and

• being regarded as having such an impairment

• ADA Amendments of 2008 (ADAAA) was passed to expand coverage and broadened the range of life activities.

• Impairment no longer needs to prevent or significantly restrict a major life activity.

ADA and ADAAA of 2008

• Employers often attach stigma to alcoholism that is not apparent with other ADA‐covered conditions.

• Addiction has a genetic component that can significantly impact a person’s susceptibility.

• Drug addiction and alcoholism can be managed, as can other chronic conditions such as diabetes, asthma, or heart disease.

• A reasonable accommodation for such an employee may include granting leave to attend an Alcoholics Anonymous meeting or rehabilitation program.

7

Caselaw: Conduct vs. Condition

• Salley v. Circuit City Stores, 160 F.3d 977 (3d Cir. 1998).

• Salley was Circuit City Manager who recovered from heroin use and became productive employee. He relapsed after ten years of sobriety.• Discussed drugs at workplace

• Reported to work under influence of drugs

• Reported late to work because of drug use

• Left work to use drugs

• Failed to report subordinate’s drug use

• Engaged in drug use with subordinate

• Court found that Circuit City had legitimate non‐discriminatory reason to fire Salley – concerned his acts would harm business.


• Klaper v. Cypress Hills Cemetery, No. 10‐CV‐1811 (NGG) (LB), 2014 U.S. Dist. LEXIS 46470, at *32‐34 (E.D.N.Y. Mar. 31, 2014)

• Klaper was cemetery groundskeeper who made threats of physical violence against co‐worker. Agreed to attend rehab for drinking problem. Failed to show up to work upon his official return date – and failed to show up for five more days. Was terminated.• Court found that “[t]he ADA does not require that employers tolerate

misconduct traceable to an employee's alcoholism, nor does it protect alcoholics from the consequences of their own behavior.”

• The court determined that the cemetery company already provided a reasonable accommodation when it rescinded the initial termination and allowed the employee to seek treatment.

8


• Barnett v. Sch. District of Lancaster, No. 14‐2414, 2015 U.S. Dist. LEXIS 36565 (E.D. Pa. Mar. 24, 2015)

• Woman was well‐regarded substitute teacher – certified, experienced, and qualified for K‐12. School rated her performance as outstanding. Given full‐time job and was lauded for exemplary performance by assistant principal in November 2011.• In December 2011, she mentioned to principal that she was a recovering

alcoholic.

• In January 2012, principal suddenly rated her performance as unsatisfactory –accused her of incompetence and forced her to resign.

• The court examined her previous positive evaluations and the temporal relationship between her disclosure and the principal’s negative evaluation of her.

• Court determined that the school based its adverse employment decision on her disability and it was therefore discriminatory.


• Larkin v. Methacton Sch. Dist., 773 F. Supp. 2d 508, 513 (E.D. Pa. 2011)

• Woman arrived at school after night of drinking and drank bottle of cough syrup to satisfy craving for alcohol. District officials confronted her, and she submitted to BAC test. Was three times legal limit, so entered treatment program.

• Upon return, she asked for transfer to get away from “people, places, things” that triggered her alcoholism. She wanted to go to another school in district that had opening – but she did not get job. She sued and alleged that school district did not make accommodation for her. • Court found that Larkin did not plead any facts that demonstrated how her

alcoholism impacted a major life activity – such as walking, learning, working, etc.

• Might have prevailed if she had presented evidence that showed how her alcoholism impaired her thinking.

• Must make factual showing.

9


• ADA may apply in a situation where an employee expresses that she/he • has previously had a drinking or drug problem;

• provides a specific explanation as to how it has impacted her/his ability to do their job (particularly if it impacts “thinking”); and

• wants to seek help.

• In these situations, reasonable accommodation is required.

• ADA does not require employer to tolerate alcohol or drug use on the job. Employers may discipline employees for improper behavior on the job, even if the employee can attribute the action to his or her alcoholism.


• Alcoholism and drug addiction both constitute disabilities under the ADA, but they are treated differently in some respects. • A person who uses alcohol currently is not denied protection if qualified to

perform the essential functions of a job.

• Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

Source: The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

10


BOTTOM LINE• ADA does not protect an individual who “currently” engages in

illegal use of drugs• Can mean someone who last used drugs up to 5 weeks ago

• ADA may protect a recovered drug addict• ADA may protect alcoholic

• Must meet the definition of “disability”

• Employer can require that they meet same job requirements and standards of performance and conduct as all other employees

• Employee must abide by Drug and Alcohol Policy

Practical Tips

• Employees who abuse alcohol and drugs can pose significant problems, including:

• diminished job performance

• lowered productivity

• absenteeism

• tardiness

• high employee turnover

• increased medical and workers’ compensation bills

• Employees who abuse drugs and alcohol can also make a workplace more volatile and dangerous, exposing employers to legal liability and other legal issues

8

11

What do you do

if you suspect

an employee is under the influence

of drugs or alcohol

at work?

9

Investigate and Document

• Suspicions regarding an employee who may be under the influence may come from co‐workers or clients, often before it is noticed by a supervisor.

• Investigate if there is a concern or a problem.

What happened?

Who was involved?

When? Where?

Who else was affected, directly or indirectly?

Do not speculate why!

13

12

What Now?

1. Check Your Policy

10

Check Your Policy

• First and foremost, you must have a written drug and alcohol testing policy.

• It should include drug and alcohol testing for reasonable suspicion.

• Look at your privacy policy, does it permit searches?

• A general policy statement may not provide sufficient notice to permit testing; if your policy does not include testing for reasonable suspicion, you may want to consult legal counsel to draft language that puts employees on notice of what to expect. Just having the policy may deter some conduct.

11

13

What Now?


2. Investigate and Document

12

Investigate and Document

• Who should conduct investigation?

• While managers may make observations about employee behavior, any actual investigation should be conducted by someone not directly in the chain of command – i.e., Human Resources, an outside third party, or legal counsel

• An employee’s supervisor or anyone who makes decisions regarding the employee’s work and job actions should never conduct the investigation. Doing so could increase the likelihood of retaliation by the supervisor or at least an allegation of same by an employee.

13

14

What Now?



3. Observation

14

Observation

• Every person who has seen concerning behavior should document what they have witnessed

• Depending on the circumstances, the investigator may have the ability to witness the concerning behavior directly

15

15

Documentation should include references to the following:

• Inability to perform essential functions of the job

• odors

• speech

• eyes being dilated or constricted

• emotional issues such as agitation or irritability

• drowsiness

• excessive sweating

• other telltale signs

• BUT beware of generalizations or discriminatory stereotypes

16

What Now?



3. Observation

4. Meet

17

16

4. Meet

• Meet with the employee for a discussion of what has been observed.

• It is a good practice to include a second administrator at the meeting.

• When interviewing your employee, a conversational and non‐confrontational approach is best, but be professional and focus on the professional situation.

• Follow and cite your policy.

18

What Now?



3. Observation

4. Meet

5. Test

19

17

5. Test

• Blood, urine, and breath tests of public employees to determine drug use are searches under the Fourth Amendment of the U.S. Constitution.

• A district may search an employee or an employee’s property if: • there are reasonable grounds to believe that the search will turn

up evidence that the employee is guilty of work‐related misconduct; and

• the search is reasonably related in scope to the circumstances that justified the interference in the first place.*

Source: O’Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985)

20

5. Test

• A district may search an employee’s workplace for non‐investigatory, work‐related purposes, if there are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work‐related misconduct.*

• A district may conduct drug tests, without a warrant and without individualized suspicion, when the test serves special governmental needs that outweigh the individual’s privacy expectation.**

*Source: O’Connor v. Ortega, 480 U.S. 709 (1987)

**Source: Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989)

20

18

5. Test

• Drug and alcohol testing is a legal issue and may depend on your policy and the specific circumstances. • It is a medical inquiry under the ADA and may only be conducted

in limited circumstances.

• Certain privacy rights must be respected.

• If your policy allows for it, contact your drug test facility to notify it that you have an employee on the way for reasonable suspicion testing.• If you send the employee for drug or alcohol testing, explain

that in order to rule out the possibility that the employee is in violation of the company’s drug and alcohol policy, you will be sending them for a drug and/or alcohol test.

20

5. Test

SAFETY‐SENSITIVE POSITIONS

• Random alcohol and drug testing of employees in “safety‐sensitive” positions may be permissible when the intrusiveness of the search is minimal and a board is able to demonstrate that the drug‐testing program furthers its interest in ensuring the physical safety of students.*

• “Safety‐sensitive” positions include those that involve the handling of potentially dangerous equipment or hazardous substances in an environment including a large number of children (i.e. driving a school bus).*

• Required testing for motor vehicle drivers includes pre‐employment, post‐accident, random, reasonable suspicion, return‐to‐duty, and follow‐up testing. **

• No driver shall refuse to submit to a post‐accident alcohol or controlled substances test, a random alcohol or controlled substances test, a reasonable suspicion alcohol or controlled substances test, or a return‐to‐duty or follow‐up alcohol or controlled substances test. **

• A district shall not permit a driver who refuses to submit to such tests to perform or continue to perform safety‐sensitive functions.**

*Source: Aubrey v. Sch. Bd. of LaFayette Parish, 148 F.3d 559 (5th Cir. 1998)**Source: 49 C.F.R. 382

20

19

5. Test

SAFETY‐SENSITIVE POSITIONS (cont.)

• If a district permits an employee who has violated a DOT drug and alcohol regulation to return to safety‐sensitive functions, the district must ensure that the employee takes a return‐to‐duty test. This test cannot occur until after the substance abuse professional has determined that the employee has successfully complied with prescribed education and/or treatment.

• The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety‐sensitive duties.

• A district is not required to return an employee to safety‐sensitive duties because the employee has met the conditions described in the preceding paragraph. Return‐to‐duty is a personnel decision that the district has the discretion to make subject to legal requirements

Source: 49 C.F.R. 40.305(a)–(b)

20

Caution

• Never allow the employee to drive themselves. Always provide transportation to and from the facility.

• Consider and explain consequences if they refuse the test under the drug and alcohol policy.

21

20

What Now?



3. Observation

4. Meet

5. Test

6. Disciplinary Action

22

6. Take Appropriate Disciplinary ActionWHEN TO TERMINATE/DISCIPLINE:

• Case by case.

• Are the employee’s acts harming the district?• Is employee showing up late due to drugs/alcohol?

• Reporting to work under influence of drugs/alcohol?

• Leaving work to use drugs/alcohol?

• Engaging in drug/alcohol use with co‐worker?

• Experiencing on‐the‐job accidents?

• Insubordination?

• Ask yourself this question:• Is this is a legitimate, non‐discriminatory reason?

• What you can do:• You can hold alcoholics to same performance and conduct standards as other

employees.

• You can prohibit alcohol in the workplace.

23

21

6. Take Appropriate Disciplinary Action

OTHER OPTIONS

• If employee comes to you with problem, you can direct them to employee assistance program:

• May be required with alcohol or certain Rx abuse

• May be optional with illegal drugs, but be consistent

• Last Chance Agreements

• Employee violates policies

• You agree not to terminate:• If employee attends substance program

• Avoids workplace problems

23

6. Take Appropriate Disciplinary Action

WHAT TO WATCH OUT FOR:

• BE CONSISTENT. If you maintain a relaxed attitude regarding some rules – but then suddenly crack down on an alcoholic employee for breaking them – you can face ADA liability.

• IF YOU ARE CONSISTENT – then you can take disciplinary action against and/or terminate an employee if the employee violates policies that led to other(s) being terminated – even if the employee claims it was the result of drinking.

23

22

6. Take Appropriate Disciplinary Action• Situations:

• If employee come to you and requests reasonable accommodation for drinking issue – and no problems have developed on job – then provide support to employee.

• An employer may ask an employee with a known disability who is having performance or conduct problems if she/he needs a reasonable accommodation. Other than that, discussion of disability may be inappropriate.

• If an employee states that her/his disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

• If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct.

• If an accommodation is requested, the employer should begin an “interactive process” to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective.The employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of “disability,” whether and to what extent the disability is affecting the employee’s conduct, and what accommodations may address the problem.• Allowing them to come to work under the influence is not a reasonable accommodation.• Giving them leave to treat addiction would be reasonable.

Source: The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, EQUALEMPLOYMENT OPPORTUNITY COMMISSION.

23

Good News – Negative Results

• If the drug or alcohol test results are negative, contact the employee and return them to their prior job as soon as possible.

• Maintain confidentiality.

• Do not discriminate or retaliate or permit anyone else to do so.

• Address any issues that may flow from negative result. i.e., if the employee was observed sleeping on the job, there may be a different disciplinary issue, and maybe an accommodation issue, but it is not a drug and alcohol issue.

24

23

Remember: It’s a Disease

• Recovering alcoholics and addicts can be happy, productive employees.

• Do not make assumptions about any behavior.

• Document behaviors thoroughly.

• Approach with compassion.

• Arm yourself with facts about the condition – this is a pervasive issue in our society.

You may not be able to change the problem, but you can change how you deal with it…

25

24

26

Documents

Katie Anderson Pete Thompson Dumb and Dumber: Dallas ... · PDF fileimpact a person’s susceptibility. ... • Woman was well‐regarded substitute teacher –certified, experienced,