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California Marijuana Legislation Will Not Change Employer Drug & Alcohol Programs

Submitted on Nov 23, 2016

California Marijuana Legislation Will Not Change Employer Drug & Alcohol Programs

The passage of recreational usage of marijuana by California voters on November 8, 2016 will not force employers to change there drug free testing programs. The new law specifically creates protection for employers to continue with or create new drug free workplace programs without having to accommodate for recreational or medical use of marijuana.

The new law stipulates in two sections that it will “Allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” One of the sections is specifically dedicated to the rights of employers. Even without this stipulation, Federal Law still defines marijuana an illegal schedule I drug. Federal Drug Testing Programs, along with any State, County, or City employee will continue to be required to follow Federal Requirements.

Many of the voters that were in favor of the legislation have no idea what is in the new law. This confusion by voters has left employers with employees making assumptions about what they can and cannot do in the workplace. Employers are quickly making sure they are pro-active with awareness information that the passage of the California Law will NOT CHANGE the requirements of there Drug Free Workplaces. We are encouraging employers to distribute notices and include information in Safety Meetings as soon as possible. The law will not change your programs and you are not required to change or accommodate any marijuana usage, possession, sale, or other association as stipulated in your policy.

The two key portions for employers to note are in Section 3(r) and Section 4 – 11362.45(f). Section 3 specifically acknowledges that employers are allowed to enact and enforce workplace policies, while Section 4 gives a full explanation of the rights of employers and addresses any changes made to the California Health Safety Code. The section, in summary, says the new law will not affect the rights of employers.

Section 4 – 11362.45(f) states that the law will NOT amend, repeal, affect, restrict, or preempt: “The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”

Despite the confusion of many voters in favor of the law, employers are not required to accommodate any misinterpretation of the new law. However, in an effort to promote safety and a quality workforce, we are encouraging employers to continue to educate employees on the dangers of use and help employees to understand that conduct outside the workplace can have adverse consequences in the workplace based on their employers’ workplace policies.

A complete copy of California’s Marijuana Law can be found HERE. If you are interested in scheduling an employee awareness class as part of your next safety meeting or if you have any other questions, please contact us at 760-244-6886.

 

 

Employers are not required to accommodate marijuana use

Submitted on Jul 09, 2015

The Colorado Supreme Court ruled on June 15, 2015 that Colorado employers do not have to accommodate marijuana use in there company policies. This gives employers the ability to terminate based on use. This ends any debate over employer enforcement of no marijuana use in Drug Free Workplace Programs and sends a message nationally that employers should have the right to enforce policies regardless of any recreational or medical marijuana legislation because of the requirements of Federal Government. Marijuana is not a Federally legal drug, therefore employers can establish policies that follow Federal Guidelines.

The ruling was based on Coats v. Dish Network. Brandon Coasts argued that his employer violated state law after terminating his employment for using medical marijuana after work, because he was with in the guidelines of Colorado State Law. After an appeals court upheld a decision that Coat's claim against his employer be dismissed the Colorado Supreme Court reaffirmed the lower courts. The court explained that marijuana use can't be considered lawful because it violates Federal Law.

SAM President Kevin Sabet explained; "This is a victory for every community that does not want to accommodate pot shops and every business owner that cares about safety and health".

Despite the fact this was not a Federal Supreme Court Ruling, this does send a clear message and should help in future employer battles against opposition to drug testing policies and the use of marijuana.

Three Synthetic Cannabinoids Temporarily Placed as Schedule I Drugs

Submitted on Feb 23, 2015

Effective Jan. 30, 2015, the Administrator of the Drug Enforcement Administration (DEA) issued its final order to temporarily schedule three synthetic cannabinoids (SCs) into schedule I pursuant to the temporary scheduling provisions of the Controlled Substances Act (CSA).

The substances are:

  1. N-(1-amino-3-methyl-1- oxobutan-2-yl)-1-(cyclohexylmethyl)- 1H-indazole-3-carboxamide (‘‘AB– CHMINACA’’)
  2. N-(1-amino-3-methyl- 1-oxobutan-2-yl)-1-pentyl-1H-indazole- 3-carboxamide (‘‘AB–PINACA’’)
  3. [1-(5-fluoropentyl)-1H-indazol-3- yl](naphthalen-1-yl)methanone (‘‘THJ–2201’’)

This action is based on a finding by the Administrator that the placement of these synthetic cannabinoids and their optical, positional, and geometric isomers, salts, and salts of isomers into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety. As a result of this order, the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule I controlled substances will be imposed on persons who handle (manufacture, distribute, import, export, engage in research, or possess), or propose to handle these SCs.

Read the full Federal Register.

The Need for confirmation Tests When Using Point of Collection Testing Kits

Submitted on Feb 20, 2015

The Drug and Alcohol Testing Industry Association (DATIA) recently published an article explaining the importance of confirming all testing with a laboratory. Mobile Occupational Services has always believed in LABORATORY TESTING ONLY. Other industry members use instant or point of collection testing kits (we call them quick kits or shake up kits). These instant kits provide an "instant" result without a laboratory. We have found that despite claims by the manufactures they are not as reliable as a laboratory and are easily compromised by simple things like storage temperature prior to use, expiration dates, adulterant use, and even over the counter medication use. For these reasons we have ALWAYS believed in the use of a laboratory for complete testing. These standards protect the employer and the employee.

 

DATIA's article explains that those that have been using instant kits and not confirming results with a laboratory, are running into legal issues. Issues so large that it is compromising their liability insurance. This points to issues of the instant kits showing false positives or other issues of invalidity for a donor....ANOTHER REASON TO ALWAYS ONLY USE A LABORATORY. Below is the news bulletin by DATIA for reference.

The Need for Confirmation Tests When Using Point of Collection Testing Kits


When performing laboratory drug testing, the standard practice is and has always been to perform a screening test and then perform a confirmation test (using GC/MS or a similar technology) on all specimens that screen non-negative. When point of collection drug testing (POCT) kits first entered the market, there was much debate on their accuracy. At that time, DATIA issued a policy statement indicating that it endorsed the use of POCT devices provided that all specimens with non-negative results are sent to the laboratory for confirmation testing. The reason being is that the technology used in POCT devices is much like that used for laboratory screening tests. As such, negative POCT results can quickly and easily be reported out allowing employers to quickly put people to work.

While POCT devices do show a “positive” result, it is important to note that that finding is based on technology using much higher threshold levels. Only with a more precise, laboratory confirmation method such as GC/MS can one be confident in the positive result. Furthermore, should the laboratory confirmation result be positive, the result should be filtered through an MRO for final verification.

These industry standard/best practices are set to protect the employer, the employee, and the service provider. DATIA worked in its early years to develop a professional liability insurance program to help protect and support industry service providers in the case of legal actions against them due to services offered. Over the past year, the number of insurance claims made and paid out has increased substantially. What’s troubling is that the vast majority of cases are due to results being reported out based solely on screening/POCT device results. Clearly, these practices do not represent industry best or even standard practice.

DATIA’s professional liability insurance program for the drug testing industry serves a great benefit to those members who utilize it. Unfortunately, due to the high number of claims for reporting results based solely on screening results, DATIA’s policy and many others are in jeopardy and as such are now including in the policy that only results reported after being confirmed are covered under the insurance policy. This requirement is needed to continue these insurance programs and to continue to support and protect those that are following industry best/standard policies.

DATIA continues to completely endorse the use of POCT devices as they provide a great benefit in so far as reporting out negatives quickly and efficiently. DATIA does, however, continue to stand by its best and standard practice that all specimens with non-negative results need to be sent to a laboratory for confirmation testing.

 

Lessons After Two Years of Marijuana Legislation - SAM Report

Submitted on Feb 20, 2015

Lessons After Two Years of Legalization

A report by (SAM) Smart Approaches to Marijuana, released a report recently that reviews the effects of legalization of Marijuana in both Washington and Colorado. The report outlines the facts and statistics related to legalization and issues related.

"Lessons After Two Years of Marijuana Legalization" shows large increases in youth use, adult use, and an increase in overall US use. It also outlines several other health and safety issues.

 

(CLICK HERE FOR THE FULL REPORT).

§ 40.111 When and how must a laboratory disclose statistical summaries and other information it maintains?

Submitted on Jan 20, 2015

§ 40.111 When and how must a laboratory disclose statistical summaries and other information it maintains?

(a) As a laboratory, you must transmit an aggregate statistical summary, by employer, of the data listed in Appendix B to this part to the employer on a semi-annual basis.

(1) The summary must not reveal the identity of any employee.

(2) In order to avoid sending data from which it is likely that information about an employee's test result can be readily inferred, you must not send a summary if the employer has fewer than five aggregate tests results.

(3) The summary must be sent by January 20 of each year for July 1 through December 31 of the prior year.

(4) The summary must also be sent by July 20 of each year for January 1 through June 30 of the current year.

(b) When the employer requests a summary in response to an inspection, audit, or review by a DOT agency, you must provide it unless the employer had fewer than five aggregate test results. In that case, you must send the employer a report indicating that not enough testing was conducted to warrant a summary. You may transmit the summary or report by hard copy, fax, or other electronic means.

(c) You must also release information to appropriate parties as provided in §§40.329 and 40.331.

(d) As a laboratory, you must transmit an aggregate statistical summary of the data listed in Appendix C to this part to DOT on a semi-annual basis. The summary must be sent by January 31 of each year for July 1 through December 31 of the prior year; it must be sent by July 31 of each year for January 1 through June 30 of the current year.

What medical conditions disqualify a commercial bus or truck driver?

Submitted on Jan 14, 2015
The truck driver must be medically qualified to not only drive the vehicle safely, but also to do pre and post trip safety inspections, secure the load and make sure it has not shifted. Bus drivers have different demands. By regulation, Specific Medically Disqualifying Conditions Found Under 49 CFR 391.41 are Hearing Loss, Vision Loss, Epilepsy and Insulin Use. Drivers who require a Diabetes or Vision exemption to safely drive a CMV in addition to those pre-printed on the certification form are disqualified until they receive such an exemption.
 
Answers are taken directly from the regulations or regulation guidance.

Northern California County Search Delays

Submitted on Jan 14, 2015
We have been continuing to notify employers on the delays that most of the counties in Northern California are showing. The delays are continuing and we are seeing drastic delays on reports with hits. Please expect 7 to 12 day delays for all reports with records (especially for those with multiple records). 
 
As in many other California Counties, clerk numbers have been reduced due to budget cuts. The remaining clerks are overworked creating delays. We expect increased delays in Northern California for case information to be the norm going forward.

New Background Check System Features

Submitted on Jan 14, 2015
We just started the first portion of our new features to our background check services. Please note the look of our system has changed. It now works on a "modular" basis. Modules can be moved around based on the users needs and can be removed by dragging them to the bottom. 
 
This new format is going to enable us to add new features and services more frequently and easily. If you have any questions about the new system please contact us at 760-244-6886 and we will be happy to help.

FMCSA Rule Change - Certified Medical Examiners

Submitted on Jan 14, 2015

In CFR Parts 383, 384, 391 the FMCSA now requires Certified Medical Examiners (MEs) to be performing physical examinations on drivers of commercial motor vehicles (CMV) and to use a newly developed Medical Examination Report (MER) Form. In addition, MEs are required to report results of all completed commercial drivers' physical examinations (including the results of examinations where the driver was found not to be qualified) to FMCSA by close of business on the day of the examination. This includes all CMV drivers who are required to be medically certified to operate in interstate commerce, not only those who hold or apply for commercial learner's permits (CLP) or commercial driver's licenses (CDL).

Be sure the person conducting your company physicals is a Certified Medical Examiner and is listed on FMCSA's list of those certified and is following all new requirements. Any physicals conducted by non-certified personnel will not be valid.

 

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