Category Archives: Drug Testing

Texas Employer’s New Year’s Resolutions for 2022

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The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?

After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.

Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)

Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.

In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.

I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:

  • January 10, 2022:
    • Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
    • Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
    • Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
  • February 9, 2022:
    • Employers must start testing unvaccinated employees weekly.
    • OSHA will start enforcing the ETS.

In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS.  And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.

The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.

Get Serious About Preventing Sexual Harassment

As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.

To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.

Continue reading Texas Employer’s New Year’s Resolutions for 2022 →

Can I Drug Test My Texas Employees for Marijuana?

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As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

Continue reading Can I Drug Test My Texas Employees for Marijuana? →

Written Policies to Protect Your Business During the Opioids Epidemic

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With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic →

My Christmas Wishes for Employers

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It is that time of year when we are singing, “We wish you a Merry Christmas”. As an employment lawyer with 30 years of experience, I have some idea of what you as a business owner or manager are wishing this Christmas.

I know you work hard as a supervisor. Managing people every day isn’t an easy job, particularly if your employees do not have a willing attitude to try to be a good employee.

I hear from employers every day about the frustrations that you face as an employer. The average person who supervises employees spends at least 20% of her time just dealing with employee mistakes, complaints, emotions, negligence, etc., on top of trying to do all of her regular work.

So, for this Christmas, I have made a list of what I wish for you as a supervisor in terms of employees.

  • Employees who realize that the purpose of a business is to make a profit, and that requires that the employee actually be present to perform the work assigned. I recently had a matter involving an employee who was tardy repeatedly for things like a flat tire, a loose dog and “I forgot to set my alarm”, so that client meetings had to be cancelled and business was lost. I wish for you as a supervisor the employment of people who realize that these little issues chip away at a business’s profitability. Even a small company should provide a generous amount of vacation time, sick leave and holiday pay. But once an employee has used up his allotted paid time off, he needs to think seriously about getting back to work and being productive for you or the business may not be there to provide his paid vacation the next year.
  • Employees who can be trusted with the success of your business, as well as the company’s time, money, and equipment. Every year I see a number of business owners in the Panhandle lose significant amounts of money to employee embezzlement, lose equipment to employee negligence and lose profitability to employee laziness. Granted, the employer needs to have reasonable checks and balances in place to try to prevent these losses. But wouldn’t it be nice if all of your employees were the kind of people who had enough integrity to forego theft, enough caution to treat your property as theirs, and enough loyalty to go above and beyond the bare minimum effort.
  • Sober employees. Most business now drug-test when an employee is hired. This has resulted in a drop nationwide in pre-hire positive drug tests. But I still see injuries and damage done by substance-abusing employees after they have worked for the business for a while. My wish is that you don’t have to deal with those issues. You can help make my wish come true by actually requiring the occasional random drug and alcohol testing in your workplace, as well as testing immediately after any personal injury or property damage occurs at work that might have been caused by an impaired employee.
  • Employees who exercise verbal discretion. Employees who gossip, spread rumors, complain, speculate and backstab in an effort to make themselves look better simply don’t realize that respect is given to those who keep their negativity and rumor-mongering to themselves. It would be great if Santa could bring each of your employees the gift of discretion this year. As someone wise said, “Discretion is the ability to raise your eyebrow instead of your voice.”
  • Employees who appreciate feedback and even criticism because it makes them better at their job. I have often thought that the clearest sign of maturity in an employee is his ability to accept constructive criticism, or even better, to ask for it. So, I wish for you employees who know that wisdom comes from humility and accountability. You deserve those employees who are not afraid to find out if they made a mistake and to ask you the best course to avoid such mistakes in the future.
  • Employees who take pride in their work regardless of who gets the credit. “My grandfather once told me that there were two kinds of people: those who do the work and those who take the credit. He told me to try to be in the first group; there was much less competition.” – Indira Ghandi. Enough said.

Such employees sound like a dream, like a Christmas wish, don’t they? But you probably know that the best way to cultivate such employees is to lead from the top down. You must be the type of leader whose character, work ethic, sobriety, discretion and integrity are unquestionable if that is the type employee you want to employ.

As I have said before in my blog posts: “You will get the employees you deserve if you are quick-tempered, unfair, dishonest, prejudiced, undependable, selfish or disloyal to your employees. Your values, good or bad, will set the standard for everyone you supervise.”

 

         

Holiday Party Precautions

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The holiday season is upon us and as employers, many of you will celebrate in that great American tradition: you will throw a big Christmas party for your employees, serve them alcohol and then turn them loose on an unsuspecting public.

Consider what could happen while the booze is freely flowing at your company holiday celebration: the alcohol emboldens a potential sexual harasser and he becomes an actual harasser of one of your staff, or a conflict between employees is fueled by alcohol and an actual physical confrontation erupt.

Another likely scenario is that your inebriated assistant gets into a car after you bought drinks at the holiday happy hour and runs down a pedestrian.

Whether the pedestrian could win a lawsuit is debatable. Back in 1987, the Texas Supreme Court said, “The risk and likelihood of injury from serving alcohol to an intoxicated person whom the licensee knows will probably drive a car is as readily foreseen as injury resulting from setting loose a live rattlesnake in a shopping mall.”

The general rule in Texas is, however, that a social host doesn’t incur liability for serving alcohol to a guest.  However, a plaintiffs’ lawyer would be happy to create new case law with a suit against an employer for encouraging an employee to get drunk at a company function and then taking no steps to protect the public from that employee on the way home.

You don’t want to be the one to provide the courts with the test case to see if an employer is responsible for its intoxicated employees. Even if you win at trial, you will lose the tens of thousands of dollars it costs to have an attorney defend the suit, you will waste valuable production time while in depositions or trial, and you and your employees will suffer a demoralizing emotional blow.

You also should be concerned about the effect that hosting a big drunken blow out will have on your ability to enforce your drug and alcohol policies at the office. This kind of inconsistency does not engender respect for you in your employees.

For the same reason, as the boss, you should watch your own drinking and behavior at any company function.

Your best decision is to honor your employees during the holidays with a party that is nonalcoholic. If you choose to serve alcohol, take a few reasonable precautions: Continue reading Holiday Party Precautions →

Why Drug Test Your Current Employees?

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As an employer, you should be committed to a drug-free and alcohol-free work environment that protects both your employees, your customers and the general public.

Drug testing your employees is an important component of that safety commitment. However, while many employers test before hiring an applicant, nearly two-thirds of employers never conduct a drug or alcohol test on current employees, according to a Society for Human Resources study in 2011.

When employers do test current employees for drugs, employees test positive about 4.2% of the time, according to the latest numbers from the annual Quest Diagnostics Drug Testing Index. That number is creeping up and is at its highest level since 2004.

Even if you are a small employer with only 25 employees, that still means that one of your current employees could test positive for drugs right now. What if that one person is the delivery driver, the heavy machinery operator, the EMT, the security guard or any other safety sensitive employee working for you? Are you willing to take a chance with the safety of your other employees and your customers?

That only 4.2% of employees test positive for drugs or alcohol is actually a little low considering how many people are actually addicted to those substances. The National Survey on Drug Use and Health in 2016 estimated that 8% of all Texans have a substance abuse disorder, with three-quarters of those Texans addicted to alcohol. The rest are hooked on marijuana, meth, heroin, cocaine and prescription opioids, in that order.

As a Texas employer, you don’t have to allow employees to be impaired at work. Continue reading Why Drug Test Your Current Employees? →

Simple Hiring Checklist for Texas Employers

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hiring-signHiring in Texas can be done in a very efficient and effective manner that reduces your chances of violating employment laws if you follow this simple hiring checklist. While large employers may need to add many more steps, I have found in 25+ years of law practice that many small employers aren’t even doing these simple steps, but should be:

 

  • Is one well-trained centralized manager with human resources experience doing the hiring instead of a group of supervisors who might ask the wrong questions?
  • Do you have a job description of the job for which you are hiring so you know the job-related qualifications?
  • Did you carefully word your job advertising so as not to discriminate?
  • If you require that an application be completed, is your application form up to date and without legal pitfalls?
  • Does the interview focus only on job-related qualifications and not personal information?
  • Do you stay away from open-ended questions like “Tell me about yourself”, which could elicit all kinds of information from the applicant that could be considered the basis of a discrimination claim?
  • Is the interviewer using an outline so that each applicant is asked the same questions and you can compare apples to apples rather than relying on the interviewer’s conversation skills and “gut reaction”?
  • Do not ask questions in the interview about the following topics. If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job duties, don’t ask it.
    • Race or color (photographs should not be requested)
    • Gender or marital status or sexual orientation
    • Whether applicant has young children, what his/her daycare arrangements are, or other family questions.
    • Age, including date of birth or when the applicant graduated from high school
    • Religion, including “Where do you go to church?” and “What do you do with your Sundays?”
    • Union membership or affiliation
    • Criminal arrests or convictions (you can run a background check if you decide to actually offer the job, but you must comply with the Fair Credit Reporting Act in obtaining the background check)
    • National origin or ethnicity (don’t ask about an applicant’s birthplace, accent, parentage, ancestry).
    • Citizenship (only inquire into an applicant’s eligibility to work in the United States, not their citizenship).
    • Education beyond what is necessary for the job (inflated educational requirements can have a chilling effect on minority applicants; therefore only ask educational questions that are relevant to the actual job responsibilities).
    • What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating).
    • Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination).
    • Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act).
    • Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
    • Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination).
  • Do not ask the following questions in an interview that could violate the Americans with Disabilities Act:
    • Whether an applicant needs a reasonable accommodation to perform the job, unless the disability is apparent or the applicant voluntarily divulges it.
    • Details of an applicant’s worker’s compensation history.
    • Whether the applicant can perform “major life activities,” such as standing, lifting and walking.
    • Whether the applicant has any physical or mental impairments.
    • Whether the applicant is taking prescription medication or any other lawful drugs.
    • If the applicant has used illegal drugs in the past or has ever been addicted to drugs.
    • Whether the applicant has participated in an alcohol or drug rehabilitation program.
    • How frequently the applicant consumes alcoholic beverages.
  • Certain questions are permissible under the ADA:
    • Whether an applicant can perform the essential functions of the job.
    • How the applicant will perform the essential functions of the job, if all applicants are asked this question.
    • Whether an applicant needs reasonable accommodation for the hiring process.
    • Whether an applicant can meet the employer’s attendance requirements.
    • Whether an applicant has ever been convicted of driving under the influence of alcohol or drug if driving is an essential duty of the job.
    • Whether an applicant is a current illegal drug user (drug testing the successful applicant after a conditional offer of the job is the best way to handle this).

Once you think you have narrowed your choices down to the applicant that you would like to hire, you can make a job offer conditional upon the results of these items: Continue reading Simple Hiring Checklist for Texas Employers →

Pot Smoking Still Grounds for Termination

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Can an employer in Texas still fire someone for smoking pot? For once, my lawyerly answer does not have to be “maybe”. Yes, you can fire an employee for testing positive for marijuana.

Unlike Colorado, Washington state, Oregon, Alaska and Washington, D.C., the Lone Star State still treats the recreational use of marijuana as illegal. It is also illegal to buy, sell, grow or even possess pot in Texas, so going to Colorado to buy it and then bringing it back to Texas is not an option.

If your written substance abuse policy tells your employees that you prohibit “illegal drugs”, then you have the right to enforce that policy regardless of whether the pot is illegal under federal, state or local laws.

Therefore, a Texas employer can still require a drug test of an applicant, a current employee, an employee involved in an accident or when the employer has a reasonable suspicion of drug use. If the test shows that the employee has used marijuana, the employer can discipline or fire the employee for violation of the company substance abuse policy.

But what if the employee claims that he is smoking pot for medicinal reasons? Continue reading Pot Smoking Still Grounds for Termination →

Painkiller Addiction is on the Rise with Employees

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The U.S. Centers for Disease Control and Prevention (CDC) reports that nearly 2 million people in the United States are addicted to prescription pain killers. One of those people might be your employee.

Opioid painkillers such as Vicodin and Oxycontin that are hydrocodone and oxycodone based are commonly prescribed to treat work-place injuries and other types of chronic pain. But these drugs are often over-prescribed and abused by patients and addiction is very common. In fact, in the last ten years, painkiller addiction rates have risen to epidemic proportions in the United States, the CDC said.

Injured or chronically ill workers who develop an addiction to painkillers represent a health and safety concern to themselves and to fellow workers. They can also create potential liability risks for you, the employer, and can lead to a less efficient and less productive workforce.

An obvious first-step in dealing with any kind of drug problem in the workplace is to be proactive and have a drug-testing policy in place that allows pre-employment testing, random drug testing, testing after workplace accidents and testing based on reasonable suspicion.

Then train your managers to look for the signs of substance abuse, particularly in employees who slack off at work, take unusual and frequent breaks, are no longer punctual, and who occasionally slur their speech or make unwarranted mistakes in their work.  While many employees may be able to manage their chronic pain responsibly and without abuse, you should be aware of the warning signs of abuse and educate your managers on them as well. These signs can include bloodshot eyes, sudden weight loss, a lack of grooming, poor attendance or other uncharacteristic behavior.

Before you take action against an impaired employee, you need to consider and weigh both the safety of your employees versus the risk of a lawsuit by the employee who is abusing drugs. The Family and Medical Leave Act or the Americans with Disabilities Act may apply to this situation, so don’t make any hasty decisions without legal advice.

Employers Refuse to Recognize Rocky Mountain High

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Many of my Texas clients also have offices in Colorado. Since that state legalized the recreational use of marijuana in November, I’ve begun receiving questions from my clients with locations in Colorado about their workplace drug use and testing policies. They want to understand their rights in light of the legality of marijuana in that state.

Legalized marijuana should be no more difficult for employers to handle than alcohol. If an employee is drunk on the job, you as an employer have a right to test him and to fire him for reporting to work under the influence of alcohol. An employee who is high on marijuana at work presents the same issue. However, marijuana shows up on drug tests long after the body has processed and gotten rid of alcohol. In other words, an employer testing on Monday won’t know that the employee was drunk on Friday night.  But if the employee got stoned on Friday night, testing on Monday will reveal that fact. Employers are therefore concerned that they won’t be able to fire an employee who tests positive for marijuana use but can’t be proven to be high at work. This generates anxiety for safety-conscious businesses.

At this point in time in the Fall of 2012, marijuana is still illegal in the United States, and therefore in every state. Just because an employee isn’t in violation of Colorado state law by smoking weed, he is still in violation of federal law and can be in violation of the employer’s substance abuse policy if it is well-written. Therefore, as an employer, make sure your policy states that, along with being under the influence at work, the use, possession or sale of illegal drugs is prohibited, and illegal drugs should be defined as any drug that is illegal under municipal, state and/or federal laws.

The federal Department of Transportation announced in December 2012 that state legalization of recreational pot would not change the rules prohibiting marijuana use by employees in safety-sensitive positions such as truck drivers, pilots and school bus drivers. Therefore, explaining away a positive test for marijuana by saying it was used legally in Colorado will not be an acceptable excuse and will still subject truck drivers, for example, to suspension of driving duties. Employers can take the same approach by letting employees know that the employer’s safety requirements will not be affected by state laws legalizing marijuana and that employees will still be subject to discipline up to and including termination for any drug test that shows marijuana use.