Thursday, October 18, 2018

So...Can We Drug Test or Not?

Post accident drug testing has been a valuable tool in the toolbox for employers wishing to promote a safe work environment. Such testing has also provided a solid defense to otherwise compensable claims if the employer could establish the presence of drugs in bodily fluid samples obtained within a certain period of time after the injury occurs. Some states such as Georgia even provide for premium discounts if the Employer qualifies as a Drug Free Workplace. So, when The US Department of Labor published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses – Employee's right to report injuries and illnesses free from retaliation” many employers began to question whether an employer could safely continue their Drug Free Workplace Program. or use post-accident Drug Testing. The chilling effect of the proposed rule was real even if the response was an overreaction. Indeed, even under the tighter rule issued in October 2016 before the end of the previous administration, the guidance offered by OSHA provided: The rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing pursuant to a state or federal law, including Workers' Compensation Drug Free Workplace policies, because section 1904.35(b)(1)(iv) does not apply to drug testing under state workers' compensation law or other state or federal law. Random drug testing and pre-employment drug testing are also not subject to section 1904.35(b)(1)(iv). Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. Still many abandoned post accident drug testing completely, lest in practice they venture too close to the line and be accused of retaliation. Last week, on October 11, 2018, the previous rule was rescinded and a new rule published in its place. That new rule can be found here: https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11 . This clarification emphatically states: “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” As if to emphasize the point, the “clarification” reads: The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. You can see from the language used that while drug testing is explicitly permitted, that employers would still be well advised to use such testing not solely for the purpose of reducing rates but also to promote a safe work environment without dissuading employees from reporting injuries. In this respect, the language of the clarification is quite similar to the language of the rule published at the end of the prior Administration. What is really new in the “clarification” is additional suggestions or guidance which encourages employers to take positive steps to great a workplace culture that emphasizes safety and not just rates. Some options: • an incentive program that rewards employees for identifying unsafe conditions in the workplace; • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses. One of the more practical suggestions for a permissible drug testing regime is that Drug testing used “to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Much of the current guidance seems to be common sense. Don’t use Drug Testing as retaliation for reporting an injury. Don’t drug test if the injury is not plausibly related to intoxication or impairment. For example, could Carpal Tunnel Syndrome have any conceivable connection to alcohol or illicit drug usage? The bottom line is, get the specimen cups ready. Testing is back on the table. If we can help you with your drug-testing or Worker’s Compensation questions, please do not hesitate to contact us.


"Skedsvold and White
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Wednesday, June 13, 2018

New Drug Test Case from the Georgia Court of Appeals

On June 1, 2018, the Georgia Court of Appeals published its decision in the case of Lingo v. Early County Gin, Inc., ___Ga. App. ___, 2018 Ga. App. LEXIS 328 (2018) and it may prove to be a significant decision for how drug testing will be done and viewed by the Georgia Courts in the case of an on the job injury. The Background: Mr. Lingo worked for a Cotton Ginning company as a "module feeder." His job was to direct drivers backing their large module trucks (filled with Cotton Bales) into a loading dock area where he would then assist them with unloading of the modules of cotton for the ginning (removal of the seeds from the cotton fiber) process. Mr. Lingo was injured on November 20, 2014 when one of the trucks crushed him against the loading docks. Lingo did not see the truck as he was facing the loading dock and reportedly did not hear the truck due to two factors: 1) the truck did not have a working back-up beeper; and 2) Lingo contends that he could not hear the truck over the sound of the cotton gin machinery running nearby. He was evacuated to a hospital in Dothan, Alabama where he was taken into surgery. While in surgery, a technician who was not permitted to enter the operating room, asked a nurse inside of the O.R. for a urine sample from Mr. Lingo. The nurse brought the sample to the technician where it was marked, bagged and sent for processing. The urine sample was positive for Marijuana metabolites. The Trial: There was conflicting evidence as to whether Lingo should have known of the presence of the truck as there was a dispute as to whether it was Lingo that directed the truck to the loading dock as part of his job. Lingo offered expert testimony in the form of a sound study regarding the noise in the area of the loading dock and from a forensic toxicologist regarding the drug test. The Sound Study Expert testified that the sound of the module truck was not distinguishable from the background noise of the cotton gin. The claimant also pointed out that the employer had offered ear plugs to protect Lingo's hearing but Lingo was not wearing them at the time. The claimant's other expert questioned whether the positive drug screen was evidence of intoxication pointing out that the marijuana metabolizes out of the blood within 30-90 minutes but will remain in the urine for days or even weeks after last consumed and so could not form the basis of a valid test. The Employer presented evidence from a co-worker who admitted to smoking marijuana with Lingo on a daily basis, who claimed that Lingo always kept a bag of marijuana on him and who claimed that Lingo "must have been really 'messed up' not to hear the truck's beeper which he argued Lingo should have heard if he was not texting on his phone." There was no evidence of marijuana or drug paraphernalia recovered from Lingo's clothing. The ALJ did not believe the co-employee, for reasons not stated in Court of Appeals opinion, but which undoubtedly included the fact that the involved vehicle did not have a working back up beeper as contended by the co-employee witness. The ALJ found the claim to be compensable and rejected the employer's drug test defense as "the lab technician did not observe the sample being taken and thre was no testimony or other evidence establishing this initial link in the chain of custody." [Let's put a pin in that and come back to it.] The Appeals: The Appellate Division of the State Board of Worker's Compensation reversed and found the drug test to be sufficiently reliable to permit the employer to rely on the presumption afforded to the employer and against compensability in the event of a positive drug screen. The Board also noted that the evidence of whether Lingo could have heard the truck was conflicting. The Claimant appealed to the Superior Court which affirmed based on the any evidence Rule (which provides that the Courts above the State Board's Appellate division must affirm the Board's ruling if there is ANY evidence to support that ruling. The Court of Appeals is also bound by the any evidence but noted that this does not apply to errors of law. The Ruling: The Court of Appeals was bothered by the chain of custody, noting that the Drug Free Workplace Act found at O.C.G.A. § 34-9-415 provides standards for the collection of bodily fluid samples for testing and that those standards are incorporated into the wilfull misconduct statute, O.C.G.A. § 34-9-17, upon which the employer relied in its defense. In pertinent part,O.C.G.A. § 34-9-415, provides: All specimen collection and testing under this Code section shall be performed in accordance with the following procedures: … (5) A specimen for a test may be taken or collected by any of the following persons: (A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; (B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health; (C) A qualified person certified or employed by a collection company. " That statute also provides for the chain of custody to be maintained. What troubled the Court of Appeals was that the person who took the urine sample from Lingo was never identified and their qualifications never compared with the list of required qualifications found within O.C.G.A. § 34-9-415. Remember that the technician did not go into the operating room and was handed a sample by a nurse who WAS in the operating room. Writing for the Court, Judge Ellington (Now Justice Ellington on the Georgia Supreme Court) found that "the person who actually drew the urine sample could have been a nurse's assistant, an intern, or some other hospital employee who did not meet the statutory criteria. In this case, the Employer's failure to establish that a person authorized under the Code Section to collect the sample is fatal to the Employer's ability to rely upon the rebuttable presumption in OCGA § 34-9-17 (b) (2)." The Court noted in a footnote to the decision "If, for example, the Employer in this case had identified everyone in the operating room as qualified to draw the sample, then it would be reasonable to assume that the person who drew the sample was qualified. In this case, though, there is no evidence establishing who was in the operating room." The Impact: 1) Urine Samples Advocates for injured workers in Georgia have long argued that a urine sample is simply not competent evidence of impairment given that the fat soluable molecules of marijuana metabolites will remain in the urine for days and weeks after last usage. Once again, the Georgia Courts have rejected that assertion. The statute is clear: bodily fluid samples (saliva, urine or blood) that test positive for illicit drugs or for prescribed drugs not taken in compliance with a prescription afford the employer with a presumption that the injury was caused by the intoxication or impairment of the injured worker. Such injuries remain NOT compensable. The Employee then has the obligation to put forth evidence to rebut the presumption. That evidence must show what ACTUALLY happened and not just what MAY have happened. Had the employer been given the presumption afforded by O.C.G.A. § 34-9-17, it is unlikely that the Sound Study expert would have made the difference. 2) Chain of Custody: In all cases the chain of custody is necessary for the employer to have benefit of the presumption against compensability. Ordinarily, this chain of custody is started in the physician office when the employee hands the sample to a nurse who seals the sample with an identifiable code on that seal which matches the coding on the document to which the employee and the physician office both affix their signatures. In Lingo, it was this initial step which was missing. Thereafter the lab which retrieves the sample signs the same document and the chain of custody continues through the initial testing and all the way through confirmation testing. The significance of the Lingo ruling is that the Court recognizes that in some LIMITED circumstance, obtaining the signature may not be possible but that the defect can be overcome by other evidence and other testimony. While having the signature on the dotted line is best, we as litigants don't always get our evidence in the best of circumstances.


"Skedsvold and White
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