Conducting a Reasonable Suspicion (RS), investigation is a touchy subject given some of the changes in state and local laws, not to mention societal attitudes. A prime example is the decriminalization of marijuana in several states such as Colorado, Alaska, California, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington — have adopted the most expansive laws legalizing marijuana for recreational use. Illinois became the second most-populous state to legalize recreational marijuana. Vermont earlier became the first state to legalize marijuana for recreational use through the legislative process, rather than via a ballot measure. Vermont’s law allows for adults age 21 and over to grow and possess small amounts of cannabis. However, it does not permit the sale of non-medical cannabis. Some other state laws similarly decriminalized marijuana but did not initially legalize retail sales.
Most other states allow for limited use of medical marijuana under certain circumstances. Some medical marijuana laws are broader than others, with types of medical conditions that allow for treatment varying from state to state. Louisiana, West Virginia and a few other states allow only for cannabis-infused products, such as oils or pills.
* From Governing.com/gov/data
A number of complex issues have to be navigated to keep the workplace safe and complaint.
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The big story is that you must understand what to do, when and why. And that is where we come in. We can train your people as trainers if needed, (ie T3) to help your company get the right information in the right hands quickly. We speak all over the USA at off-sites, meetings or at client sites as requested.
Step 1: Write a Substance Use Policy…Not a Substance Abuse Policy.
If you don’t have a policy, write one and do it now. Your leaders need to be trained and know the policy thoroughly. If you are challenged, the first thing that is often brought up is, “did you follow and apply your own policy evenly?” What’s that? You don’t have a written and understood policy? Ouch. The how do you know what to do from one person to the next? If you need help composing a policy, we can help.
Remember, we are not MD physicians and we are not diagnosing anybody. We are pointing out the prohibited behaviors in the workplace. This means never have “well-intentioned” managers tell somebody, “Hey man, I think you might be an addict or an alcoholic and I am just trying to help!” They have just ‘labelled’ that person and opened your company up to exposure under The Americans with Disabilities Act Amendments Act (ADAAA) or other such regulations. A good rule of thumb is to follow the FHWA model. It helps clarify the number of drugs tested for, metabolite cut off levels, etc. It requires a good faith effort and proper documentation of firsthand observations.
Step 2: Provide Training and Education for all regarding Your Substance Use Policy.
This means provide good training and documentation of that training to all front-line supervisors and leadership. Depending on the scope of your business, you may need to conduct policy training to leaders and education for rank and file workers on what impacts them. For example, if they perform what the Feds call ’Safety Sensitive” jobs, they are likely to be covered under several administrative regulations. These might be Federal Highway Administration (FWHA), Federal Railroad Admin (FRA), Federal Aviation Admin. (FAA) etc. Each of these agencies has their own prescribed testing protocols interpretation of results, random testing and record keeping requirements. Again, if you need training, we can help.
The goal of RS is to rule out possible use or impact of substance on the behavior that they observe firsthand. In general, it should take two management people to pull the trigger on sending worker for an RS breath alcohol or urine drug test. If there is only one management person available, they should make a good faith effort to document their observations and send the subject to testing. A simple easy to follow documentation form is provided for checking off what is observed, the date, time, employee facts and sign off by the manager(s). This addresses the vital need for “probable cause” before sending a person to RS testing.
In general, a worker who has been placed in Reasonable Suspicion status is suspended from their job pending investigation of the facts. If the MRO adjudicated them negative, they are made whole, back pay and all. A big question is: If they come back negative, have we done anything wrong? The answer is no, providing we have solid documentation of why the person was sent to rule out possible banned behaviors in the workplace. Remember that behavior is what we are concerned with and are not diagnosing anybody. (samhsa.gov)
Step 3: Engage with recognized and professional Breath Alcohol & Urine Collection sites
Collecting a Breath Alcohol sample or Urine sample for RS testing is a tightly controlled process. It must be done by trained technicians following chain of custody protocols. This is the “glue” in the process that ensure testing integrity.
Step 4: Engage with recognized Medical Review Officer (MRO)
This is the medical doctor on whose medical authority the determination of a positive or negative result is based. In certain circumstances they may require a “split” sample and order a retest of a urine specimen to validate a result. Other times they might suspect tampering or adulteration. These are the medical professionals who make the determination that we abide by. Their word is final and keeps us out of potential trouble by making some determination ourselves.
Please reference #14 How to Conduct Reasonable Suspicion Investigations
