drugs, fmla & workplace investigations webinar | snagajob

TODAY’S PRESENTERS

John MerrellShareholder

Gretchen EwaltShareholder

Stephen WoodsShareholder

Atlanta / Austin / Berlin / Birmingham / Boston / Charleston / Charlotte / Chicago / Cleveland / Columbia / Dallas / Denver / Detroit (Metro) / Greenville / Houston / Indianapolis / Jackson / Kansas CityLas Vegas / London / Los Angeles / Memphis / Mexico City / Miami / Milwaukee / Minneapolis / Morristown / Nashville / New Orleans / New York City / Oklahoma City / Orange County / Paris / Philadelphia Phoenix / Pittsburgh / Portland / Raleigh / Richmond / Sacramento / San Antonio / San Diego / San Francisco / Seattle / St. Louis / St. Thomas / Stamford / Tampa / Toronto / Torrance / Tucson / Washington, D.C.

FMLA & ADAWorkplace Investigations

Drug Testing


John MerrellShareholder, Ogletree Deakins

[email protected]


WorkplaceInvestigations

Poll Question

What grade would you give your current workplace investigations process?


Workplace Investigations

Investigate all complaints1

Select the right investigator2

Do your homework3

Have a plan4

Let the witnesses tell the story5


Workplace Investigations

Consider need for confidentiality6

Assess credibility7

Create accurate and complete record8

Take corrective action, if necessary9

Follow through10


Have a reporting mechanism and investigate every complaint

● Can help limit liability from claims of harassment, discrimination, wrongful termination, etc.○ Caveat: different levels of “investigation”

1


Select the right investigator

● Must be free of biases

● Must be willing to dig in and drill down

● Experience level and level of training

● Nature of allegations

2


Do your homework!

● Collect relevant documents

● Compile a preliminary list of potential witnesses

● Review personnel files of relevant employees○ Complainant ○ Accused○ Witnesses

3


Have a plan and be thorough

● Act promptly

● Interview complainant, accused, immediate supervisors, and any witnesses they identify

○ No “perfect” order, but consider: Complainant → known witnesses → accused → additional witnesses identified

● Get the who, what, when, and where of every alleged incident and ask for additional witnesses

4


Let the witnesses tell the story

● When talking to witnesses other than complainant, don’t give details of complaint unless necessary to obtain relevant information

● Ask “Is there anything else you think I should know?”

● Phrase questions so you don’t give unnecessary information

● Start with broad, open-ended questions; get more specific as necessary

5


Consider the need for confidentiality

● Assure complainant you will maintain confidentiality to the extent possible, consistent with obligation to conduct a thorough investigation

● BUT

○ Don’t promise confidentiality

○ Never agree to forego an investigation because the complainant has requested confidentiality.

6


Confidentiality (cont’d)

● Witness confidentiality may be justified where there is a risk of:

○ Evidence being destroyed,

○ Collusion, fabrication of testimony, copycat evidence, or a cover-up,

○ Theft or misappropriation of trade secrets,

○ Retaliation against accuser, accused, or a witness, or

○ Future criminal charges


Assess credibility

● Reach a reasonable conclusion (“inconclusive” should be the exception, not the norm)

● Is the “story” credible?

● Is there corroborating or contradictory evidence?

● Does anyone have a reason to lie?

● Did any witness contradict himself/herself?

7


Create an accurate and complete record

● Take written statements, where appropriate

● Prepare a summary

● Stick to the facts – no legal conclusions!

● In interview notes, include objective facts and objective observations, not subjective assessments

● This could be evidence

8


Take corrective action (if necessary)

● Review your policies and past practices

● Consider severity, frequency, pervasiveness, past actions and potential for future incidents

● If evidence supports complaint, take appropriate corrective action, commensurate with wrongdoing

9


Follow through

● Instruct complainant to immediately report retaliation or further harassment

● Periodically check back with complainant

● Inform complainant of action taken

10


DrugTesting


Gretchen EwaltShareholder, Ogletree Deakins

[email protected]


Overview — Drug Testing● State Marijuana Laws

● Anti-Discrimination Provisions

● ADA/FMLA Considerations

● Effects on Workplace Safety

● Practice Pointers

● Elements of a Defensible Drug Policy

Poll Question

What grade would you give your screening & workplace

policies for MML compliance?


State Laws● At least 5 states have legislation pending

○ Including Florida where a medical marijuana bill is awaiting the governor’s signature

● 8 states (plus D.C.) permit recreational marijuana

● 28 states (plus D.C.) permit some form of medical marijuana

○ Individuals who suffer from a “debilitating medical condition” are authorized to use medical marijuana upon receipt of “registry identification card”

○ A “debilitating medical condition” can meet definition of disability under applicable state and/or federal law


What Do MMLs Mean for You?● Most MMLs provide that employers are not required to accommodate intoxication, use, or

possession in the workplace

● However, 11 states [AR, AZ, CT, DE, IL, ME, MN, NY, NV, PA, and RI] contain anti-discrimination provisions

○ [A]n employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon . . . a patient’s positive drug test for cannabis . . . unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Minn. Stat. Ann. § 152.32(3)(c).


What Do MMLs Mean for You?● Some states expressly allow employers to enforce

their drug-free workplace policies:○ CA○ CO○ DE○ IL○ MT○ NV○ WA


ADA/FMLA Considerations● No duty to accommodate illegal drug use

● Recovering addict provisions

● But, employer may have a duty to engage in the interactive process if the employer has reason to believe the employee is disabled

● Employer may also have to consider whether FMLA or other leave is appropriate for underlying medical condition


Practice Pointers● Legalization ≠ accommodation

○ No requirement under state law (except in 11 states [AR, AZ, CT, DE, IL, ME, MN, NY, NV, PA, and RI]) to accommodate medical use

● Duty to provide safe workplace paramount○ No state currently restricts employer prohibition on recreational use○ Beware “lawful off-duty conduct” litigation

● Establish and communicate clear drug policies ○ Employers (except in AZ, CT, DE, IL, ME, MN, NV, PA, and RI)

may enforce drug testing policies to exclude employees who test positive for marijuana

○ Beware ADA risks in drug tests positive for Rx drugs○ Drug testing policies must be uniformly enforced to avoid discrimination claims


Elements of Defensible Drug Policy● Confront medical and recreational marijuana use in policy

● Reference (explicitly) the federal law prohibition on marijuana

● Prohibiting “working under the influence” is not enough

○ Must make it impermissible to have “any detectable level of any illegal controlled substance” in the employee’s system

● Informed consent for testing

● Which employees are covered?

● When will tests occur?

● Will the employer provide employee assistance (rehab)?

● Beware state-specific provisions: one size does not fit all!


FMLA & ADA


Stephen WoodsShareholder, Ogletree Deakins

[email protected]

Poll Question

Has your company received an FMLA or ADA request in

the last 18 months?


Goals of Employer FMLA Rules

Discourage “risk-weighers”

Catch cheaters and weed them out of the workforce

1 2


Create procedures designed to make

clear “risk weighers” will be caught

2

Interrogate

3

Crack down on abuse

1

Discourage “risk-weighers”FMLA


Discourage “risk-weighers”FMLA

■ Strengthen call-out policy

■ Discipline for failure to follow

■ Push for better notice

■ Count absences if late notice received

■ Alert Leave Management Team (and supervisors?) of patterns

■ Update job descriptions to get more information

■ Push back on incomplete or inaccurate Certifications

■ Request new certifications every 6 months or when absences exceed those approved in current Cert.

■ Use interrogation tactics

■ Be sure to engage in ADA interactive process


Call-Out PolicyFMLA

WHO

Employee should call, not proxy

WHAT

Reason for and expected length

of absence

WHEN

As soon as practicable

(practical and possible)

WHERE

Where must employee call?

HOW

Verbal notice


Call-Out ConsiderationsFMLA

Employer obligations under FMLA

● Communicate with employee

● Send information

Consider adding requirements for the employee to advise:

● Initial: Where he/she can be reached

● During: Where he/she can be reached if phone/address changes


Are you sure you need to take this leave?

● For what?● Is this already approved?

What functions can you not perform?

How are you going to get yourself home if you are incapacitated?

Is it medically necessary for you to take the leave?

Is there any way you would be able to continue working?

If you can drive, how can you not work?

InterrogationFMLA & ADA


ADA: How to reasonably accommodate

Do not have to—and shouldn’t—use terms “disability,” “reasonable accommodation,” or “interactive process” in discussions with the employee

Review current job description and any available physical job analysis for other positions considered

Receive input from employee about his/her limitations

Identify potential accommodations and assess how effective each would be, including discussions with employee and with internal HR/Legal

Review medical documentation concerning employee’s condition and work restrictions, when appropriate

If possible, identify essential and nonessential functions of job duties and job purpose

Engage in good faith, interactive process with employee


Making facilities accessible and

useableRestructuring jobs

Creating part-time or modified work

schedules

Reassigning to vacant positions

Acquiring or modifying

equipment or devices

Adjusting or modifying

examinations, training

materials or policies

Providing qualified readers or

interpretersProviding leave

Reasonable accommodations - examplesADA


Would cause undue hardship

When an employer is excused from ADA duty to accommodateWhen accommodation ...

Is a direct threat to the health and safety of coworkers

or to employee him/herself

1 2


An action requiring significant difficulty or expense ...

Undue hardshipADA

Nature and cost of accommodation needed

Overall financial resources of facility or facilities involved

Number of persons employed at facility

Effect on expenses and resources, or impact

otherwise of such accommodation

Overall financial resources of employer

Overall size of employer’s business with respect to

number of employee

Number, type and location of facilities

Type of operation or operations of employer,

including workforce composition, structure

and functions

Geographic separateness, administrative or fiscal

relationship of facility or facilities to employer


Policy❑ Revise LOA policies to include accommodative

leave

❑ Include period for a neutral absence control policy — that takes accommodative leave into account

Tips for administering leave as an accommodationEnsuring ADA Compliance, Shortening Leave Periods, and Reducing Abuse

Implementation❑ Grant leave extensions in shorter increments;

require new documentation showing leave is on track to be definite

❑ Document indefinite nature of leave in communications with employee and/or physician

❑ Require physician to estimate return date with “reasonable medical certainty”

❑ Require physician to represent that the definite leave will allow the employee to perform essential job functions

Activity ID: 320623Credit Hours Awarded: 1 (HR General)

Activity ID: 17-V3AKGProfessional Development Credits (PDCs): 1

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drugs, fmla & workplace investigations webinar | snagajob

Recruiting & HR