Maintaining Drug-Free Workplace: 2016 and Beyond Alcohol, Marijuana, Prescription Drug Abuse, and Heroin Addiction

TOPICS ADDRESSED

I. Confidentiality Concerns When Members Seek Assistance with Addiction or Mental Health Issues
II. Medical Marijuana Use in the Workplace
III. Anti-Retaliation Provision of the new OSHA Injury Reporting Rule


I. Confidentiality Concerns When Members Seek Assistance with Drug Testing/Addiction/Mental Health Issues

There are occasions when a union member seeks the assistance of his or her union’s business agent for help in dealing with an addiction or other mental health issue. Is this information confidential? What is the context in which the information was shared? Is the member seeking assistance with the employer because of discipline? Or does the member need help with issues relating to health insurance? Can an employer force the business agent to share the information with it? Can the business agent deal with the Health & Welfare Fund on behalf of the member?

Below are some of the laws that might be implicated in these situations:

1) HIPAA. The first thing that might pop into your head when thinking about personal medical information is HIPAA. However, HIPAA does not cover unions and their agents. HIPAA applies only to “covered entities”- basically, health care providers and health insurance providers – and to their “business associates” – for example, a third-party administrator or a pharmacy benefits manager. HIPAA does not apply to unions or their agents who receive medical information from a member. Thus, HIPAA does not prevent a union agent from disclosing information provided to him/her by a member (or anyone else) whether about drug testing, addiction, or mental health issues.

A) Dealing with the Health and Welfare Fund on behalf of a member. HIPAA will be implicated if the member has asked the business agent to help them with an insurance issue related to a medical condition. HIPAA will not prohibit the business agent from contacting the Fund on behalf of the member but it will prevent the Fund employees from sharing any individualized information with the business agent unless the business agent has an authorization from the employee. The Fund can explain generally the sort of coverage it provides for addiction treatment, mental health treatment, etc. This result does not change even if the business agent is also a Trustee of the Fund; if there is going to be a sharing of individualized medical information from the Fund to the Trustee, an authorization is necessary.

B) Dealing with the employer on behalf of a member. There are no HIPAA considerations when the business agent is dealing with the employer on behalf of the member. Like the union, the employer is not a covered entity. As a corollary, the employer may not use HIPAA as a shield to deny information to a union who is seeking the information as part of its representative function.

2) Americans with Disabilities Act. The ADA requires employers to keep most medical information related to its employees private but it does not impose this same restriction on unions in their role as bargaining representative. Furthermore, the ADA does not protect the confidentiality of positive drug tests for illegal substances or information about current illegal drug usage.

3) Duty of Fair Representation. There is no black-letter law requiring a union to maintain the confidentiality of information provided to it by a member. If the union discloses the information in a good-faith attempt to assist the grievant, there will not be any violation. However, if a grievant who was disciplined for tardiness tells the union she’s a meth addict during a meeting to discuss the grievance, the union might have a problem if it shares that seemingly-irrelevant information with the employer, which then fires her. On the other hand, if the grievant mentioned that she suffers from depression and at times, such as on the day of her tardy, cannot get out bed, that information might be relevant to defending the tardiness discipline. The test for a union in sharing medical information provided to it by a member is whether the union represented the individual in a nondiscriminatory, non-arbitrary or capricious manner.

Keep in mind that a union has a duty to represent the entire unit. If the information shared with the union poses a safety threat to its other members, the union does not violate the DFR by telling the employer. For example, if a member makes a threat of violence against his/her co-workers, the union may share that information with the employer.

4) Invasion of Privacy. The courts in the various states recognize a common-law tort claim for invasion of privacy that can be asserted by an individual who has been harmed by another person who has publicly disclosed embarrassing private facts about the individual. The elements of an invasion of privacy claim are:

A) Publication (or publicity)

B) Absent privilege or waiver

C) Of private matters in which the public has no legitimate concern

D) That would bring shame or humiliation to a person.

These cases are very fact dependent. If the union representative has shared the information with either the employer or a health and welfare fund, there is little chance a claim would lie because the representative has valid reasons for disclosing the information to those parties. However, if the union representative broadcast the fact that so-and-so failed a drug test at the monthly membership meeting, there may be a case. However, even in such a seemingly straightforward situation, there may be an argument that this is information in which the membership has a legitimate concern, perhaps for safety reasons.

Defamation. A defamation claim can only be successful if a union or one of its agents publicizes false information about a member.


 

II. Medical Marijuana Use in the Workplace
Of the state in the Midwest Region, the only one that currently has a full medical marijuana law is Illinois. A few other states – Iowa, Missouri, Oklahoma, Texas – have passed a more limited law that allows the use of cannabis oil for the treatment of intractable epilepsy. It is expected that over the next several years, more states will pass medical marijuana laws and thus, questions about the use of medical marijuana at work will become more frequent.
Currently, there is no Midwest Region state in which the use of marijuana at work is protected, not even Illinois. This is because while “legalizing” marijuana for medical purposes, at least at the state level, eliminates state criminal penalties, it does not prohibit employers from drug testing, from imposing zero tolerance drug policies, or from discharging employees who violate those policies.
Lawsuits challenging these policies in states which have legalized the use of medical marijuana have uniformly been decided in favor of the employer. In part, this is because marijuana is still classified as an illegal drug in the federal system and both state and federal anti-discrimination laws relating to employment do not protect for use of an illegal drug. Once marijuana is off the list of Schedule I drugs – which is expected to happen in the not-too-distant future – the appropriateness of use at work will be analyzed in the same way as is use of other potentially impairing but legally prescribed drugs, such as opiates and benzodiazepines. Thus, the first question will be whether the drug is being taken due to a disability; the second question will be whether the employee can use the drug and still perform his job safely. (Even with legally prescribed drugs, an employee cannot be impaired at work.) If the answer is yes to both questions, the employer will have to accommodate the use. If, however, the employee operates a bulldozer all day, the employer will not have to accommodate the use.
One area of uncertainly is the efficacy of marijuana testing. Currently most marijuana testing searches for metabolites, which indicate use at some point in the recent past but do not necessarily show impairment. At the point at which marijuana is taken off the Schedule I list and is treated as a prescription drug, testing will need to show impairment, not just recent usage, or employees may be able to successfully challenge employer actions based on positive tests under the anti-discrimination laws.

 


 

III. Anti-Retaliation Provision of the new OSHA Injury Reporting Rule
On May 12, 2016, OSHA implemented a new final rule on the electronic reporting of workplace injuries and illness. The primary focus of the rule was to encourage employers to encourage timely reporting by their employees of workplace injuries and to discourage retaliation by employers against employees who do report workplace injuries. The rule has been challenged in several federal courts by trade groups and as a result, the anti-retaliation portion of the rule, which was originally to go into effect on August 10, has now been postponed to December 1.
The rule itself does not mention drug testing. However, OSHA commentary accompanying the new rule makes clear that OSHA will frown on blanket post-injury drug testing requirements. OSHA has taken the position that blanket post-injury testing deters proper reporting because the threat of drug testing may be perceived by employees as an adverse action, thus discouraging them from reporting an accident

To be in compliance with this rule – assuming the challenges are not successful — employers should tighten up their policies as follows:

A) Limit testing to situations in which employee drug use is likely to have contributed to the accident – as an example, no testing if an employee reports a bee sting or a repetitive strain injury!
B) Ensure that testing is done to identify impairment and not just use – not usually much of a problem with alcohol use testing, but certain drugs stay in the system for a lengthy period of time so testing does not necessarily imply on-the-job impairment

Employer drug testing that is conducted in accordance with other federal or state requirements – for example, DOT’s post-accident testing requirements, will not be in violation of the rule. However, collectively bargained drug testing policies should be reviewed to make sure that they do not appear to discourage reporting.

 

 

Presenter: Janine M. Martin at the LIUNA MIDWEST REGION LABORERS COMBATING OPIOID ABUSE AND DRUG-FREE WORKPLACE CONFERENCE – November 2, 2016

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