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Thursday, November 16, 2017

Part 40 Final Rule - DOT Summary of Changes

 On November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229).  The rule, among other items, added four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone).  It also added methylenedioxyamphetamine (MDA) as an initial test analyte and removed the testing for methylenedioxyethylamphetaime (MDEA).
When is the final rule effective?
     The final rule is effective January 1, 2018.

What does this mean for employees?
     You will also be tested for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone).  Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, Exalgo®.  In addition, you will no longer be tested for MDEA.

What does this mean for employers and Consortium/Third Party Administrators (C/TPA)?
     As an employer or C/TPA, you will no longer be required to submit blind specimens to laboratories.

What does this mean for urine collectors?
     The shy bladder process has been modified so that the collector will discard any specimen provided during the collection event when the employee does not provide a sufficient specimen by the end of the three hour wait period.

What does this mean for laboratories?
   As an HHS-certified laboratory you will:
·         Add four semi-synthetic opioids: hydrocodone, oxycodone, hydromorphone; oxymorphone to your DOT testing panel;
·         Add MDA as an initial test analyte;
·         Remove testing for MDEA;
·         Add three more fatal flaws to the list of reasons when a laboratory would report a ‘rejected for testing’ specimen; and
·         Need to modify the reports [in Appendix B & C] you provide to employers and the DOT.
What does this mean for Medical Review Officers (MRO)?
     Several of your MRO drug test review processes have been modified.  For example:
·         The term ‘prescription’ has been clarified;
·         You have authority to conduct D,L stereoisomer and THC-V testing; and
·         The timing when you communicate a significant safety risk has been modified.
What does this mean for alcohol technicians?
      The list of NHTSA-approved Alcohol Screening Devices and Evidential Breath Testing Devices will appear on ODAPC’s website.
What does this mean for service agents?
·      Collectors, alcohol testing technicians, MROs, and Substance Abuse Professionals will be required to subscribe to ODAPC's list-serve at:
·         Unauthorized use of DOT-branded items (such as logos or emblems) on a service agent’s website, publications, etc., could be a basis for the DOT to initiate a Public Interest Exclusion proceeding.
What are some of the other changes to Part 40?
·         The DOT added a new section reiterating that, in the DOT testing program, only urine specimens can be collected and analyzed at HHS-certified laboratories.
·         The DOT added language further emphasizing the existing DOT prohibition on the use of DNA testing on DOT drug-testing specimens.
·         The final rule made minor modifications to certain section headings.
·         The final rule moved the list of Substance Abuse Professional certification organizations from the rule text to ODAPC's website.
·         The final rule moved the MIS instructions from Appendix H to ODAPC’s website.
·         Outdated compliance dates were removed and links were updated.
·         Appendices B, C, D, and H were updated.
Where can I find a copy of the final rule?
      You can view the final rule on ODAPC’s web site

NOTE:   This document informally summarizes some of the important effects of the rule, but it is not a substitute for the rule and should not be relied upon to determine legal compliance with the rule.  ODAPC encourages affected entities, including employers and service agents, to review the final rule.

Thursday, November 9, 2017

Hot Potato #MeToo Social Media Post Concern Employers

With the high-profile sexual harassment #MeToo movement it is a good idea to develop your employer’s plan. The movement features women posting #MeToo on social media, or in high profile TV spots, to indicate they were sexually harassed at some point in their lives. The goal of this hashtag is to draw attention to the magnitude of these previously unreported problems.

Sexual harassment in the workplace is unlawful under Title VII. However, being a “total jerk” or “just creepy” is not itself illegal or actionable unless that supervisor, manager, Hollywood producer, is just a total jerk or just creepy to women only. A #MeToo message implies that her boss may have sexually harassed her which may put your organization at risk.

Now that you, wearing your employer hat, have seen the post, what comes next? Bury your head in the sand? Ignore it? Or Be Proactive? Take action today like Speaker Ryan to nip it in the bud?

First Question: What does your Anti-Harassment Policy say?

Anti-harassment policies should include specific reporting mechanisms for employees who believe they have been subjected to unlawful harassment or discrimination. There should be two distinct reporting procedures such as call 1-800 number, or contact a specific HR representative or specified high ranking company official by title. Make sure you are specific to debunk a report that never was made. Once a complaint is submitted, the policy should provide for a prompt contact back to the employee (within 48 hours) and then a thorough (legally defensible) investigation into the allegations. There is much more I could say on the legally defensible stuff but you get the point.

 But I have never included in a policy for one of my employer clients that has a “vague post on a social network” as a designated reporting. Most “put their head in the sand” employers might take the position that “no report was made” and thus no duty to investigate. And there is in fact an affirmative defense in the law to the claims in cases involving harassment by a supervisor that does  not involve a tangible employment action if it can show that: (1) it took reasonable steps to “prevent and correct promptly any sexually harassing behavior;” and (2) the plaintiff-employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise – employer published a policy with training.”

The Better Approach is to Seize a Teachable Moment

In addition to potential harassment claims, EEOC Charges, Lawsuits, totally distracted workforce, the #MeToo post reveals that your employees might benefit from anti-harassment training. Employers should strive to ensure that employees understand its anti-harassment and anti-discrimination policies and reporting procedures, as well as its commitment to preventing and correcting unlawful behavior in the workplace. The best way to do that is video training, smartphone is OK, with a request for all employees to again sign the policy. Also, great time to update your policy with a workplace civility anti-bulling policy as well. Employer training should not be focused solely on avoiding liability but also should be designed to proactively eliminate harassing and disrespectful conduct, and create a workplace environment where it is all about respect. In fact, let’s start a #MeTooItsAllAboutRespect movement!
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He can be contacted at or 334-246-2901. Blog at

Friday, November 3, 2017

Big Coffee Fight Brewing Over Trade Secrets

Ronald DiFabio executed a Confidentiality Agreement when he started employment with Keurig Green Mountain Inc. in which he promised that he would not, at any time, directly or indirectly, use any Confidential Information or disclose to anyone outside of Keurig any such Confidential Information. DiFabio further agreed that if he ceased to be employed by Keurig at any time, he would immediately return any property belonging to Keurig.

After DiFabio left his employment with Keurig to join SharkNinja, he violated his obligations to Keurig under his Confidentiality Agreement by asking Keurig employees to email him Keurig internal organizational charts and proprietary information about the merchandising teams at several of Keurig’s retail customers, according to a Verified Complaint filed by Keurig in Massachusetts Federal District Court this week.(Link: Also alleged is that before his resignation from Keurig in late 2016, DiFabio removed at least nine electronic files containing Keurig’s confidential business information and/or trade secrets from Keurig’s electronic systems, as well as hard copies. He then loaded them, or “migrated them” onto SharkNinja’s electronic systems.

Co-worker Steven Turner, who signed the identical Keurig Confidentiality Agreement, resigned from Keurig in 2017 to join DiFabio at SharkNinja. According to the same Federal Court Complaint, Turner violated his obligations to Keurig under his Confidentiality Agreement by emailing, to his personal email account, and a short time before his resignation, Keurig’s Confidential Information, including highly confidential business, marketing and sales plans prepared by Keurig relating to one of Keurig’s largest customers Bed Bath & Beyond, which included a power point presentation to the customer.

This week Keurig filed suit against both employees under the Defend Trade Secrets Act (“DTSA”) which provides a federal cause of action to the owner of a trade secret that is misappropriated and is related to a product or service used in (or intended for use in) interstate commerce. 18 U.S.C. §1836(b). The Complaint included a claim under the Computer Fraud and Abuse Act (“CFAA”) which provides a private right of action where a party knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value. 18 U.S.C. §1030(a)(4).

Common Sense Counsel: CFAA and the DTSA are significant weapons to combat employee trade secret theft. Be prepared to quickly take these steps now: 1) update all non-disclosure agreements, confidentiality agreements, employment agreements, consulting agreements, and independent contractor agreements to include new DTSA non-disclosure provisions to include the required notice signed by all employees; 2) documents containing trade secrets should be labeled as confidential, their distribution should be limited, they should be maintained in secure areas, and individuals who are privy to such secrets should be trained on the nature of that information and how to safeguard it; 3) access to computer files containing such information should be restricted and tracked; 4) those with access should be trained on the files’ confidentiality; and 5) because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, be prepared to bring  such claims in tandem with the DTSA and CFAA violations.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at

Thursday, October 26, 2017

Federal Judge Refuses to Slow the Demise of Obamacare

The Affordable Care Act requires health insurance companies to subsidize the cost of co- payments and deductibles for lower-income people. In turn, the Act requires the federal government to make advance payments to the companies to cover the cost of this subsidy. The legal problem in this case is that while the Act requires the insurance companies to be paid, but the Act did not actually appropriate money for these payments. If Congress doesn't appropriate money for a program, the Constitution prohibits the executive branch from spending money on that program – even if Congress previously enacted a statute requiring the expenditure.

The Obama Administration took the position that the Affordable Care Act indeed appropriated money for the payments, so it drew funds from the U.S. Treasury every month to make them. The Trump Administration initially continued this practice, but has now concluded that the Act did not actually make the necessary appropriation and terminated the payment effective October 2017, at least until Congress decides to appropriate the money.

In response, the State of California, along with 17 other states and the District of Columbia, filed this lawsuit, contending the Obama Administration was right.  They sought an emergency ruling requiring the Trump Administration to continue making the payments while the lawsuit is pending.

On Wednesday October 2017, a California Federal District Judge Vince Chhabria denied the States’ request. His ruling made these two critical findings. First, although the case is at an early stage, and although it's a close question, it appears initially that the Trump Administration has the stronger legal argument. Second, and more importantly, the emergency relief sought by the states would be counterproductive. State regulators have been working for months to prepare for the termination of these payments. That would not include the State of Alabama, from what I have been told. And although you wouldn't know it from reading the states' papers in this lawsuit, the truth is that most state regulators have devised responses that give millions of lower-income people better health coverage options than they would otherwise have had. This is true in almost all the states joining this lawsuit, including California, whose regulators issued a press release just days before the suit explaining how so many lower-income people will benefit.

Common Sense Counsel: I recently presented a plan to local industry titled President Delivers Opportunity to Lower Employer Medical Cost to band together and explore the formation of a Multiple Employer Welfare Arrangement (MEWA), with employee incentivized Health Reimbursement Accounts (HRA) coupled with wellness plans, child care scholarships, that would enjoy lower premiums, more local control of healthcare decisions and result in happier and healthier employees – an employer’s greatest asset! See my 10.15.2017 Column Trump Decides to Lower Small Business Health Care Premiums for details.  Expect the slow demise of Obamacare, sky rocking premium increases, deductibles and co-pays in Alabama in 2018. The solution to healthcare is local. It is not found in Washington. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334.246.2901 or 205.222.8030. Blog at

Friday, October 20, 2017

Four Reasonable Accommodations to Watch in 2018

No. 1. FMLA/ADA coordination. Recently a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that an extended medical leave of absence is not a “reasonable” accommodation within the meaning of the Americans with Disabilities Act (ADA). According to the Court, a reasonable accommodation has to allow the employee to work. Because an employee can’t work while on an extended medical leave, leaves are governed by the Family and Medical Leave Act (as well as employer policies) rather than the ADA. The court did not rule out the possibility of short or intermittent time off as an ADA accommodation. An employee signed job description is critical to winning this battle.

No. 2. Medical marijuana accommodation. Not too long ago, the Massachusetts Supreme Judicial Court said that employers may be required under the state disability rights statute to make reasonable accommodations for the use of medical marijuana by a cardholder. The court specifically said that “reasonable accommodation” could include treating a positive medical marijuana test result as a “negative” and allowing the applicant or employee to work. Employers who have employees that report to work in jurisdictions that have: (1) legalized medical marijuana; (2) state has an anti-discrimination medical marijuana cardholder statute; and (3) state has a disability rights law, should review their Drug Testing policies and practices carefully. But if your employees are covered by a federal law that prohibits all marijuana use, such as U.S. Department of Transportation regulations, then you can continue to comply with federal law even if you’re in a medical marijuana/disability rights state. But watch out, because federal law generally does not require you to fire an employee who tests positive — it usually requires only that you remove the employee from the position that is covered. Again, your job description and DOT Policy will govern your options.

No. 3. Pregnancy accommodation. Since the Supreme Court’s 2015 decision in Young v. UPS, employers must make reasonable accommodations for pregnancy and pregnancy-related conditions. Employers with employees who need pregnancy accommodations should use what they’ve learned from making reasonable accommodations under the ADA: specifically, be open to making accommodations, engage in the interactive process with the employee, feel free to choose the least expensive/least disruptive accommodation that is still effective (allows the employee to perform the essential functions of the job), and generally treat the pregnant employee who needs accommodation the same way you would treat an employee with a disability or work-related injury. As the courts have interpreted Title VII’s pregnancy protections, “pregnancy” encompasses much more than the nine months of gestation. It includes pre-pregnancy (trying to get pregnant, trying not to get pregnant, contraceptive use, fertility treatments), gestation (including miscarriages and elective abortions), and postpartum and lactation.

No. 4. Wellness programs. This summer, a federal judge in the District of Columbia struck down the EEOC’s wellness regulations as they pertained to the ADA and to the Genetic Information Nondiscrimination Act (GINA). In a nutshell, the regulations allowed employers to use financial and other incentives (within limits) to get employees to participate in employer wellness programs. Rather than vacate the regulations, the judge remanded them to the EEOC to fix. The EEOC now says that it will issue revised regulations sometime in 2018. Expect those to be more employer friendly to making healthcare more affordable for employers.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Parts of this Column were part of a Constangy Blog Post Robin Shea. Blog at www.alabamaatwork

Thursday, October 12, 2017

Trump Decides to Lower Small Business Health Care Premiums without Congress

The Trump and Republican promise to “Repeal and Replace” the ACA has run into more than one bump in the road. On Thursday President Trump let the nation know that he is aware of the other arrows in his health care quiver. His solution could be accomplished by allowing small business employers to band together thousands of employee lives forming “association health plans” via their trade associations or chambers of commerce, and crossing state lines.

Under the Employee Retirement Income Security Act of 1974 (ERISA) there already are provisions in the law which could allow small businesses to band together to provide healthcare benefits, and even cross state lines. In East Alabama there are currently thousands of employees covered under their employer’s self-insured ERISA plans, administered by Blue Cross/Blue Shield of Alabama, with various forms of stop-loss reinsurance.  Further legislation is not necessary, but regulatory change would speed adoption and expansion of this alternative for East Alabama Small Employers.

The mechanism to accomplish this is the self-insured Multiple Employer Welfare Arrangement (MEWA). MEWAs can be fully insured as well. MEWAs were created under the amendments to the ERISA in 1983 which currently allows employers to form self-insured health plans through their employer business associations, which are re-insured by insurance companies using a stop-loss plan, thereby providing adequate reserves to satisfy state regulators.

There are currently more than 175 self-insured MEWAs across the United States with tens of thousands of small businesses participating. In 2016 there were 9 MEWAs in Alabama listed on the Department of Labor (DOL) site. The problem is that the current law provides for dual regulation of MEWAs, by both the federal DOL and each individual state Department of Insurance, such as Alabama.

The DOL has consistent standards for MEWAs, but each state can have its own unique requirements. Alabama currently has no specific MEWA regulations, but looks at the underlying stop-loss insurance carrier as the state regulated entity. This limits the ability of MEWAs to cross state lines, as they would have to navigate each state’s insurance department requirements.

The 1983 amendments to ERISA provided a mechanism to resolve the problem by giving the Secretary of Labor the ability to adopt a regulation whereby the dual regulatory system can be circumvented. In other words, the DOL can adopt a regulation permitting MEWAs to cross state lines to offer more health insurance options for small businesses. The section of ERISA that provides for this is 29 U.S.C 1144 (b)(6)(B). Thus, legislation will not be required and Secretary of Labor Acosta, who was first to talk Thursday at the White House, already has the authority to do this.

In states, such as Alabama, where there are currently only one or two insurance options, there could be dozens of MEWAs available for small businesses to join, where local providers and employers joined together to solve their own local health care challenges. This could result in numerous lower-cost options for healthcare for small and large employers in East Alabama.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at www.alabamaatwork

Standing Firm: Marijuana Workplace Solutions in Light of CT decision

Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the Federal Controlled Substances Act, possession of marijuana is still illegal under federal law. However, recent decisions will require employers to take a fresh look at their marijuana prohibition language and in those states with medical marijuana card holder protection laws, to engage in an interactive process before taking adverse employment action. Of course, an ounce of prevention (see 7 steps below) is much less costly than the pound of cure which a plaintiff’s attorney will seek to heap on an employer’s head later.

Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act in states which have specific discrimination protection laws for medical marijuana cardholders. Most will recall that in  2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court in Coats v Dish Network reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court in Roe v. Teletech held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California in Ross v. Ragwire has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies. None of these states had medical marijuana card holder protection laws

However, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s disability discrimination law and medical marijuana card holder protection law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.

On the heels of that decision, Katelin Noffsinger was offered for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut where she was required to take a routine pre-employment drug test. She gave notice that she was a Conn. Medical Marijuana Card Holder diagnosed with PTS and took Marinol prescription marijuana. Bride Brook rescinded her job offer because she tested positive for marijuana. In August, 2017, a Connecticut Federal District Judge, on Motion to Dismiss her lawsuit, ruled against the employer and held: 1) federal law does not preempt the Connecticut medical marijuana statute, even if they test positive on an employment related drug test; and 2) the CT MM Act provides a private right of action for individuals claiming to be discriminated against as a result of their qualifying patient status; and 3) employers regulated by federal laws are not exempt from the state statute’s discrimination prohibitions. This Federal Court decision has potentially sweeping implications for employers who conduct workplace drug testing in states with medical marijuana card holder protection laws.

So how does an employer Standing Firm with regards to marijuana use? Following these 7 steps is your ounce of litigation prevention:
1.      Know the safety sensitive and other work-related risk associated with marijuana use;
2.      Become knowledgeable with the marijuana laws and applicable cases in the states where employees report for duty;
3.      Upgrade your job descriptions to include critical essential function safety language directly applicable to marijuana use;
4.      Make it all about safety in supervisory training and employee awareness;
5.      Update your drug free workplace policy language when dealing with marijuana; 
6.      Understand the interactive process and workplace drug testing employer obligations in those states with medical marijuana card holder protection laws; and
7.      Put all the puzzle pieces into place to form your compliant legal strategy to effectively stand firm when dealing with marijuana in your workplace.

Tommy Eden is a Partner with the Management Labor Law Firm of Constagny, Brooks, Smith and Prophete, LLP and leads the Constangy Workplace Drug & Alcohol Testing Group where he drafts customized DFWP Compliant Policies, and signoff forms in all 50 states and all DOT Modes with forms toolkits. Tommy has a blog site at and can be contacted at 334.246.2901 or