Missouri Slants Workers’ Comp Modification to Benefit Employers
(Fall 2017) In July, the Show-Me State approved Senate Bill 66 (SB66) adjusting workers’ compensation if an employee’s injury was the result of alcohol or nonprescribed controlled drugs. The compensation or death benefits for the injured employee will be cut by half if the claim can be linked to the use of alcohol or nonprescribed controlled drugs.
The new law states that a positive result for an illicit drug will result in a rebuttable presumption that the substance was in the employee’s system when the injury or accident occurred and contributed to it if:
- The original drug screening was given within 24 hours of the incident;
- The employee was notified of the test results within two weeks of the insurer receiving notice of the results;
- The worker was offered an opportunity for a second test; and
- All screenings were confirmed by mass spectrometry and followed best practices.
This measure puts the burden of proof on the claimant, as the employee must prove the absence of drugs in his or her system at the time of the event in question.
West Virginia Approves Safer Workplace Act
(Fall 2017) West Virginia Governor Jim Justice signed HB 2857 and The Safer Workplace Act became effective on July 7. The measure gives employers more freedom by allowing workplaces to screen both potential hires and employees for drug and alcohol use as a condition of hiring or continued employment. This legislation nullifies previous laws that only allowed employers to perform drug tests in cases of reasonable suspicion and safety-sensitive positions. The restrictions were not applicable to potential employees and caused confusion.
The Safer Workplace Act does not require employers to have drug-free workplace policy but does make it easier for those employers who want one by paring down privacy rights giving greater latitude for employers to do employee drug tests. To comply with the new law, if a workplace wants to implement a testing protocol, employers are required to offer applicants a copy of their drug-free workplace standards, and employees must have foreknowledge about the policy. Additionally, the new measure protects employers from being liable for actions taken due to a positive drug test or an employee’s refusal to test. Adopting the new Act’s provisions affords employers protection regarding
- Omission of drug or alcohol testing or failure to screen for a specific drug or other controlled substance.
- Failure to detect any specific drug or other substance; any medical condition; or any mental, emotional or psychological disorder or condition.
- The cessation of any substance abuse prevention or screening program/policy.
Another benefit of instituting a drug-free workplace program under West Virginia’s new law is a cap on unemployment insurance and workers’ compensation claims in cases where the employer’s written policy states employees cannot work with alcohol or prohibited drugs in their system.
To qualify for these limitations, the written policy must also state that an injured employee’s refusal to submit to a test results in the forfeiture of unemployment and workers’ compensation benefits. Additionally, the act does not require an employer to provide any assistance or treatment programs.
HB 2857 states that workplaces must underwrite the cost of testing and, if not conducted at the workplace, directs employers to either provide or pay for transportation to and from the testing site.
Although the law leans heavily in favor of employers, some safeguards are also built into the law for workers. For example, each positive result must be followed up with a second screening. Employees and applicants may also choose to give information that could affect the outcome of tests, such as the use of prescription medications.
Fine-Tuning DFWP Policy in Iowa
(Fall 2017) Iowa’s Senate Bill 32 further articulates drug screening requirements for businesses in the public sector. The measure follows federal standards for urine, blood and oral testing, and restricts hair-testing to pre-employment.
Indiana Outlaws Synthetic Urine Sales
(Fall 2017) As of July 1, the Hoosier State approved a measure banning the sale of adulterants and synthetic urine. The new law says that anyone distributing these products with the objective of helping another individual tamper with a drug test can be charged with a misdemeanor.
Philadelphia Considers Dropping Testing for Marijuana
(Fall 2017) To boost employment and decrease the city’s 26% poverty rate, Philadelphia’s mayor is discussing the idea of easing drug-free workplace standards for individuals using marijuana. Philadelphia does not have the power to legalize the drug. It can, however, take steps such as dropping THC drug screenings for certain jobs or barring employers from asking potential hires to submit to a drug test until a conditional job offer is made.
State-Specific Discrimination Law Starting to Gain Ground on Workplace Drug Policies
(Fall 2017) In June a judge ordered a public utility district (PUD) in Washington State to pay a former worker over $1.8 million for its infraction of the Washington Law Against Discrimination. The PUD terminated its employee because her drug screening returned positive for a narcotic medication she was using for migraines. The court’s decision was based, in part, on the fact that the employer did not confer with the Medical Review Officer (MRO) for a proper interpretation of the test result. The judge also stated that the worker’s migraine treatment, including the opioid drug Dilaudid, was allowable as an extension of her protected health issue.
Based on the judgment in this case, it’s time for a friendly reminder: always use a Medical Review Officer in your testing practice!
Employers Taken to Court Over Medical Marijuana
(Fall 2017) A Connecticut federal judge handed down a decision in August stating that federal law does not preempt the non-discrimination portion of the state’s Palliative Use of Marijuana Act (PUMA). This mandate prevents an employer from making hiring or firing decisions based on an individual’s legal use of medical marijuana under state law. PUMA allows employers to ban the use of marijuana or being high on the job but barred workplaces from discriminating against a legal medical marijuana patient solely because he or she is authorized by the state to use the drug. Connecticut is not the first state to pass medical marijuana legislation that contains such anti-discrimination safeguards. Arizona, New York, Delaware, Minnesota, Illinois, Rhode Island, Maine and Nevada have similar laws, although courts in these states have not had to rule on the matter yet.
In the Connecticut suit, the employer’s defense positioned that PUMA is preempted by three federal laws: the Controlled Substances Act (CSA), the Americans with Disabilities Act and the Food, Drug, and Cosmetic Act. Even though, to date, cases nationwide concerning the CSA’s preemption of state medical marijuana laws have sided with employers, these situations did not involve statutes containing precise anti-discrimination specifications at the state level. The Connecticut federal judge decided that the defendant’s actions did not constitute a conflict between these three laws and PUMA.
Meanwhile, the Massachusetts Supreme Court sided with a medical marijuana user in a suit charging her employer with her unlawful firing after a positive drug screening. The employee was told when hired her medical marijuana use would not be an issue, as her physician suggested it to treat a chronic medical condition. However, after one day on the job, human resources fired her because her new-hire drug test indicated marijuana usage. The employer informed her that its policy mirrored federal law (which bans marijuana use) rather than state law (which allows for medical use) in this matter.
In finding for the employee in the Massachusetts case, the court stated that the employer discriminated due to a handicap. Specifically, the employee, with an established medical issue, was fired because of the treatment for the condition. The judge reasoned that the state’s medical marijuana law specifies that patients cannot be refused “any right or privilege” due to their marijuana use for medicinal purposes. This encompasses reasonable accommodation, which would allow for the use of the drug while not at work. However, the decision said that such accommodation did not include on-the-job use. The judge went on to say that federal law banning marijuana does not make its use an
DOJ Wants Removal of Federal Medical Marijuana Indemnity
(Fall 2017) Opioids are not the only drugs on Attorney General Jeff Sessions’ radar. Continuing his tougher stance, Sessions has turned his sights to marijuana. He is requesting that Capitol Hill strip away the federal protections for medical cannabis use approved in 2014. Specifically, Sessions wants Congress to allow the Justice Department to leverage federal money to prohibit states from imposing their own legal measures regarding all facets of medical marijuana, essentially resulting in a federal ban on the drug’s medicinal use. Additionally, Sessions assembled a task force to study the connections between cannabis and violent crimes.
Some lawmakers are opposing Sessions’ moves to restrict marijuana. In June senators from both sides of the aisle brought a bill back to the floor that would permit medical marijuana patients to use the drug, exempting them from the threat of federal prosecution. Aside from compassionate care, legislators from states that have legalized cannabis use are fighting for another pragmatic cause: to keep tax revenue generated by the multibillion-dollar marijuana industry.
States Restrict Opioids Issued for Acute Pain
(Fall 2017) Long-term opioid use and abuse often begins with treatment of short-term pain. In reaction to the Centers for Disease Control and Prevention’s (CDC) guidelines issued last year cautioning providers about prescribing opioid painkillers for chronic pain, at least 17 states have approved laws curbing the prescription of painkillers. Some states have passed legislation that caps opioid prescriptions to a week or less and others have given the nod to dosage limits.
Rx Theft Persists at VA Hospitals
(Fall 2017) In the summer, we reported on the Department of Veterans Affairs’ (VA) new strides to stop employee drug theft. These efforts included staff drug screenings as well as more inspections and internal inventories. However, even with the new procedures in place, only three dozen cases have been initiated by the office of the VA’s Inspector General in a short seven-month period. All told, there are over 100 open criminal cases regarding theft, illegal drug use or missing prescriptions.
Balancing the Prosecutorial Approach
(Fall 2017) From the other side of the political aisle, Democratic senators argued against the Department of Justice’s approach of viewing addiction treatment as a criminal justice issue. Twenty of them are advocating for increased efforts by the Office of National Drug Control Policy (ONDCP) to quell the nation’s large opioid problem. In a letter to the ONDCP’s acting director, the legislators requested that the Trump administration fulfill the former Surgeon General’s recommendations and pointed out that the White House’s new budget proposal would remove close to $400 million from drug and mental health funding.
Two New Hampshire senators, Jeanne Shaheen (D) and Maggie Hassan (D), meanwhile, have proposed legislation that simply seeks to keep the ONDCP operating after information concerning a 95% budget cut proposed by the Trump administration was leaked. Their bill would also introduce ways to make the ONDCP more efficient and work to allocate additional monies for its initiatives.
Prosecutorial View on Demand vs. Supply
(Fall 2017) Following opioids down the supply chain, the DEA is tracking medications to the doctors prescribing them – and then to the patients who overdose. The number of doctors investigated by the DEA has more than quadrupled in a five-year span from 88 physicians in 2011 to over 470 in 2016. The Centers for Disease Control and Prevention (CDC) noted that a majority of individuals who misuse prescription painkillers obtain them at no cost from a relative or friend. However, among those most at risk, almost 30% have their own prescriptions for the opioids, and a recent study revealed that an alarming 91% of opioid-overdose survivors could obtain another opioid prescription.
At a local level, some prosecutors are attempting to combat the opioid emergency by pressing homicide-related charges against drug dealers in situations involving overdose deaths. Successful prosecution is challenging, though, as lawyers rely on toxicology data to medically link substances to the deadly overdose. Prosecutors must demonstrate that a dealer was aware of the drug’s potential harm but sold it anyway. Often a dealer’s lawyer will offer a defense stating that the client wishes to keep customers alive so they will return to buy more drugs. Making these cases even more challenging, juries must determine if a dealer is guilty of the death of an individual who knowingly ingested a dangerous drug.
DOJ & Others Bolster Prosecutorial Position on Drug Crimes
(Fall 2017) U.S. Attorney General Jeff Sessions and his Justice Department are clamping down on drug-related issues. Reversing the Obama administration’s more temperate approach to drug crimes – which led to a smaller federal prison roster for the first time in several decades – Sessions is issuing instructions for federal lawyers to hit drug offenders with the harshest charges possible for their offenses. Both civil rights organizations and Republican lawmakers are reportedly against the new stance.
Sessions also rolled out a new Department of Justice (DOJ) initiative called the Opioid Fraud and Abuse Detection Unit. As part of this program, the DOJ is sending a dozen federal prosecutors to some of the cities hardest hit by the epidemic. They will battle the opioid scams, pill mills and health care fraud fueling drug abuse nationwide. Also, the Unit will focus on treatment facilities that have submitted reimbursement requests for drugs they proceed to fence illegally. Other targets will be those reporting fraudulent claims against private insurance companies. The Attorney General stated that another responsibility of the task force will be to identify over-prescribing physicians and over-dispensing pharmacies as well as pinpointing regional areas with extreme opioid activity.
Additionally, the DOJ recorded a $35 million-dollar win against Mallinckrodt LLC, one of the biggest sources of generic oxycodone (which has contributed to the opioid crisis). The pharmaceutical maker agreed to the settlement after being accused of violating the Controlled Substances Act (CSA). It is the first settlement of this size seen with a drug manufacturer to resolve country-wide allegations that the company failed to notice and report large orders of controlled drugs to the Drug Enforcement Agency (DEA). Sessions stated that the settlement shows drug companies that the DOJ will stringently police them; efforts he feels will help curb drug abuse and addiction and, in the process, decrease unnecessary deaths.
Opioid Crisis Declared a National Emergency
(Fall 2017) Encouraged by his drug commission, in August President Trump categorized the country’s struggle with opioids as a national emergency. The panel, headed by New Jersey Governor Chris Christie, suggested a multi-pronged action plan. This includes imposing mandates that oblige health insurers to provide equal coverage for all types of health care — be it physical, mental or addiction treatment. The advisors are also asking for the development of fentanyl-sensing devices, proposing that all police officers carry the opioid overdose-reversal drug naloxone and backing the implementation of more medication-assisted treatment programs for opioid addiction in the penal system. Beyond these objectives, the commission is advocating for healthcare practitioners in federally qualified health centers to seek waivers to distribute buprenorphine for addiction treatment. The group also recommends a July 2018 deadline for states’ prescription drug monitoring systems to be linked together.
Additionally, U.S. Representative Marcy Kaptur pointed out that the Trump administration could help the situation by discontinuing its efforts to strip away the Affordable Care Act (ACA), which increased Medicaid funding to cover the cost of addiction treatment for the poor.
Now that the opioid crisis has been officially named a national emergency, the White House should have more flexibility in the allocation of federal funds for drug prevention, treatment efforts and increased law enforcement. It is important to note that national emergencies are usually reserved for natural disasters such as floods and hurricanes, although public health emergencies are sometimes employed to combat diseases, e.g., the zika virus in Puerto Rico during the Obama era.
Ohio plays a sadly notable role in this national crisis — leading the country in opioid fatalities. The Buckeye State and several municipalities are mounting suits against five pharmaceutical companies, charging that they deluged Ohio with the prescription opioids that brought about its citizens’ overdose and addiction issues.