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Monday, September 27, 2010

Illegal Drug Use Highest Level in a Decade














Alabama@Work
By: Tommy Eden, Attorney

Marijuana use rises; prescription drug abuse and ecstasy use also up. The use of illicit drugs among Americans increased between 2008 and 2009 according to a national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA). The National Survey on Drug Use and Health (NSDUH) shows the overall rate of current illicit drug use in the United States rose from 8.0 percent of the population aged 12 and older in 2008 to 8.7 percent in 2009. This rise in overall drug use was driven in large part by increases in marijuana use. The complete survey findings are available on the SAMHSA Web site at: http://oas.samhsa.gov/nsduhLatest.htm.

The annual NSDUH survey, released by SAMHSA at the kickoff of the 21st annual National Alcohol and Drug Addiction Recovery Month, also shows that the nonmedical use of prescription drugs rose from 2.5 percent of the population in 2008 to 2.8 percent in 2009. Additionally, the estimated number of past-month ecstasy users rose from 555,000 in 2008 to 760,000 in 2009, and the number of methamphetamine users rose from 314,000 to 502,000 during that period.

Flat or increasing trends of substance use were reported among youth (12 to 17-year-olds). Although the rate of overall illicit drug use among young people in 2009 remained below 2002 levels, youth use was higher in 2009 compared to 2008 (10.0 percent of youth in 2009, versus 9.3 percent in 2008, versus 11.6 percent in 2002). The rate of marijuana use in this age group followed a similar pattern, declining from 8.2 percent of young people in 2002, to 6.7 percent in 2006, remaining level until 2008, and then increasing to 7.3 percent in 2009. Additionally, the level of youth perceiving great risk of harm associated with smoking marijuana once or twice a week dropped from 54.7 percent in 2007 to 49.3 percent in 2009, marking the first time since 2002 that less than half of young people perceived great harm in frequent marijuana use. The rate of current tobacco use or underage drinking among this group remained stable between 2008 and 2009.

Overall past-month illicit drug use among young adults aged 18-25 increased from 19.6percent of young adults in 2008, to 21.2 percent in 2009. This rise in use was also driven in large part by the use of marijuana.

NSDUH is a scientifically conducted annual survey of approximately 67,500 people throughout the country, aged 12 and older. Because of its statistical power, it is the nation’s premier source of statistical information on the scope and nature of many substance abuse behavioral health issues affecting the nation.

Common Sense Counsel: These statistics are no surprise when 15 states have legalized marijuana for medical use. Arizona and South Dakota voters take up the issue on the ballot this November and California could become the first state to legalize marijuana for personal use of adults 21 and older. Employer adoption of legally compliant state drug-free workplace programs is even more important than ever. The return on investment is approximately 5 dollars saved for every 1 dollar spent on drug-free workplace programs. There is enormous drug related costs in increased accidents, turnover, absenteeism, discipline and lack of productivity which are directly the result of workplace drug use and abuse.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Federal Drug Testing Custody and Control Form; Technical Amendment

















Alabama@Work
By: Tommy Eden, Attorney



Published in today’s Federal Register (9-27-10) is a Department of Transportation Interim Final Rule (IFR) mandated for Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The Technical Amendment provides instructions to employers, collectors, laboratories, and Medical Review Officers (MROs) for use of the new Department of Health and Human Services (HHS) Federal Drug Testing Custody and Control Form (CCF), and it offers a technical amendment to laboratories regarding mandatory reporting of confirmed positive drug / drug metabolite quantitations to MROs. The effective date of the IFR is October 1, 2010. You will find the full text of the IFR at http://edocket.access.gpo.gov/2010/pdf/2010-24038.pdf.

Regarding Use of the CCF:

1. DOT- regulated employers and their service agents are authorized to begin using the new CCF on October 1, 2010.

• A copy of the new CCF can be found thru the HHS web site at: http://www.reginfo.gov/public/do/DownloadDocument?documentID=189034&version=1

2. Use of old CCFs is permitted through September 30, 2011, because of the large number of existing supplies. If the old CCF is used on or before September 30, 2011, collectors and laboratories will:

a. Collector: Write in the specific DOT Agency under which the specimen is collected in the Remarks Section in Step 2 on Copy 1 of the old CCF.

b. Laboratory: Before transmitting a confirmed positive drug test for MDMA, MDA, or MDEA, as appropriate, to the MRO, check “positive” box and write in the specific MDMA, MDA, or MDEA analyte in the “Remarks” section in Step 5-A of Copy 1.

3. The IFR provides instructions for:
a. Filling out Step 1-D on Copy 1 of the new CCF, which now includes the Federal testing authorities – HHS; DOT; and Nuclear Regulatory Commission (NRC), with further specificity for the DOT Agencies – FMCSA; FAA; FRA; FTA; PHMSA; and the USCG;

b. Filling out Step 5-A on Copy 1 of the new CCF, which now lists MDMA, MDA, and MDEA, as well as “Δ9-THCA” after “Marijuana Metabolite” and “BZE” after “Cocaine Metabolite” to specify the drug analytes;

c. Filling out Step 6 on Copy 2 of the new CCF, which now has a line for the MRO to note the drug(s) for which a positive result is verified, and a new line item “other” for documenting other “refusal to test” situations – for example, when there is no legitimate medical explanation for the employee providing an insufficient amount of urine;

d. Filling out Step 7 on Copy 2 of the new CCF, which now has a box the MRO is to check if a split specimen is reported as cancelled; and

e. Revised instructions for completing the CCF are on the reverse side of Copy 5

Other Items
:

• In harmonizing with HHS, Part 40 will require mandatory reporting of confirmed positive drug / drug metabolite quantitations by laboratories to MROs.

• A new section §40.14 was added to spell-out, in one place, the information employers and their C/TPAs must routinely provide to collectors.

NOTE: Comments to the IFR are due by October 27, 2010. The Department seeks your comments about the actual implementation of the new CCF, and not on the form itself.

Common Sense Counsel
: All DOT-regulated employers should update their drug and alcohol testing procedures to incorporate these changes by the October 1st implementation date. Those employers who fail to do so risk DOT fines of up to $10,000.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Wednesday, September 15, 2010

EEOC Files 3 ADAAA Cases


















Reprint O&A News October 10, 2010
Alabama@Work
By Tommy Eden, Attorney

The U.S. Equal Employment Opportunity Commission (EEOC) on September 9, 2010 filed three new disability discrimination cases under the broader and simplified definition of disability set forth in the ADA Amendments Act of 2008 (ADAAA). These cases allege discrimination against qualified individuals with diabetes, cancer and severe arthritis.

In Atlanta, the agency charged Eckerd Corporation, a nationwide drug store chain doing business as Rite Aid (EEOC v. Eckerd Corporation d/b/a Rite Aid filed in U.S. District Court for the Northern District of Georgia) with refusing to provide a reasonable accommodation -- a stool to sit on -- to a long-time employee who experienced severe arthritic symptoms in her knees. Fern Strickland, who had worked as a cashier for Rite Aid with this reasonable accommodation for seven years without incident, lost the use of her stool in January 2009 when a new district manager decided that the company would no longer accommodate her disability. According to the EEOC Complaint, the district manager “did not like the idea” that Strickland used a stool. The suit claims that she was terminated several weeks later because of the manager’s failure to accommodate her disability.

In a case filed in Baltimore, the EEOC alleges that surveying company Fisher, Collins & Carter fired two employees because they had diabetes and hypertension. According to the suit (EEOC v. Fisher, Collins & Carter, filed in the U.S. District Court for the District of Maryland), the company asked Robert Gray and Wayne Seifert and other employees to complete a questionnaire regarding their health conditions and medications. Gray had worked for the company for 15 years starting as a rodman, and had been promoted to the position of party chief by the time of his termination. Seifert had been employed since 2000 as a rodman. The EEOC suit asserts that, despite their many years of successful performance, the company unlawfully selected Gray and Seifert for a reduction-in-force on January 21, 2009, on the basis of their disabilities, while retaining less qualified, non-disabled employees.

In the third case filed in Lansing, Mich., the EEOC charged that IPC Print Services fired one of its employees rather than allowing him to work part time while being treated for cancer. According to the EEOC Complaint, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC's suit (EEOC v. IPC Print Services, Inc., in U.S. District Court for the Western District of Michigan), alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC's obligation to reasonably accommodate Nelson's disability.

Common Sense Counsel: These cases, the first filed by the EEOC under the ADA Amendments Act of 2008, illustrate that the new definition of “disability” is both broad and straightforward. Those with serious medical conditions such as cancer, diabetes, and severe arthritis — must be evaluated according to their qualifications, and not their disabilities. Where a reasonable accommodation will enable a person with a disability to perform the essential functions of her job, an employer must provide it. Employer Action Steps: 1) updated job descriptions with essential functions; 2) ADAAA handbook policy language is strongly advised; 3) supervisor training on ADAAA responsibilities is critical; and 4) understanding the interactive ADA dance is just good risk reduction.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com


Tuesday, September 14, 2010

Prepare Now for New DOT Drug Testing Procedures











Alabama@Work
By Tommy Eden, Attorney

If you have any DOT Regulated Employees this is a suggested posting (not legal advice- for educational purposes only).
****
Notice to all DOT Regulated Employees

New DOT Drug Testing Procedures Effective October 1, 2010

The Department of Transportation (DOT) is revising certain drug testing procedures to conform its testing rules to new rules being implemented by the Department of Health and Human Services. The 7 DOT Mandated Changes listed below are effective October 1, 2010. Full regulation at: http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf.

7 DOT Mandated Changes:1. Requires testing for Ecstasy (MDMA) with initial screening cut-off concentration at 500 ng/ml and confirmatory cut-off concentration at 250 ng/ml.

Ecstasy is a stimulant which produces intensely pleasurable effects including enhanced sense of self-confidence and energy. Other effects include loss of inhibition and feeling of "closeness" to others, blurred vision, decreased awareness of bodily functions and needs (eg. decreased awareness of dehydration leading to overheating with liver, kidney and/or heart failure), sleep deprivation (leading to anxiety and depression as well as decreased reaction time), short (and possibly long) term memory deficits and decreased ability to concentrate. Hallucinations include distortions in time, perception, and tactile (touch/feeling sensation) experiences.

2. Cutoff concentrations for cocaine have been lowered. The initial (screening) test cutoff drops from 300 ng/ml to 150 ng/ml, and the confirmatory test cutoff concentration has been lowered from 150 ng/ml to 100 ng/ml;

3. Cutoff concentrations for amphetamines have been lowered. The initial (screening) test cutoff has been lowered from 1,000 ng/ml to 500 ng/ml, and the confirmatory test cutoff concentration has been lowered from 500 ng/ml to 250 ng/ml;

4. Initial testing for 6-acetylmorphine (“6-AM”) (a unique metabolite of heroin, considered to be definitive proof of heroin use) is now required. Specific rules have been added to address the way in which Medical Review Officers (“MROs”) analyze and verify confirmed positive test results for 6-AM, codeine and morphine;

5. Modified certain definitions. Revised definitions of “adulterated specimen,” “confirmatory drug test,” “initial drug test,” “invalid drug test,” “laboratory” and “limit of detection;”

6. Added some new terms and definitions. New definitions include “initial specimen validity test,” “limit of quantitation,” “negative result,” “positive result,” “reconfirmed,” “rejected for testing,” and “split specimen collection;” and

7. MRO training and qualifications have been revised.


Please take time to familiarize yourself with these DOT changes and conduct yourself accordingly. The DOT regulations require testing for illegal drug use by regulated employees that occurs on and off the job. The Designated Employer Representative has a copy of the complete regulations if you have specific questions.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Wednesday, September 8, 2010

New DOT Drug Testing Procedures















Alabama@Work
By: Tommy Eden, Attorney

The Department of Transportation (DOT) is revising certain drug testing procedures to conform its testing rules to new rules being implemented by the Department of Health and Human Services. Changes become effective October 1, 2010. The full regulation is found at: http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf.

7 DOT Mandated Changes:

1. Requires testing for Ecstasy (MDMA) with initial screening cut-off concentration at 500 ng/ml and confirmatory cut-off concentration at 250 ng/ml.

2. Cutoff concentrations for cocaine have been lowered. The initial (screening) test cutoff drops from 300 ng/ml to 150 ng/ml, and the confirmatory test cutoff concentration has been lowered from 150 ng/ml to 100 ng/ml;

3. Cutoff concentrations for amphetamines have been lowered. The initial (screening) test cutoff has been lowered from 1,000 ng/ml to 500 ng/ml, and the confirmatory test cutoff concentration has been lowered from 500 ng/ml to 250 ng/ml;

4. Initial testing for 6-acetylmorphine (“6-AM”) (a unique metabolite of heroin, considered to be definitive proof of heroin use) is now required. Specific rules have been added to address the way in which Medical Review Officers (“MROs”) analyze and verify confirmed positive test results for 6-AM, codeine and morphine;

5. Modified certain definitions. Revised definitions of “adulterated specimen,” “confirmatory drug test,” “initial drug test,” “invalid drug test,” “laboratory” and “limit of detection;”

6. Added some new terms and definitions. New definitions include “initial specimen validity test,” “limit of quantitation,” “negative result,” “positive result,” “reconfirmed,” “rejected for testing,” and “split specimen collection;” and

7. MRO training and qualifications have been revised.

Common Sense Counsel: All DOT-regulated employers should update their drug and alcohol testing policies to incorporate these changes by the October 1st implementation date and conduct updated supervisor reasonable suspicion training to include Ecstacy and provide notice of these changes to all DOT covered employees. Those employers who fail to do so risk DOT fines of up to $10,000. On September 24, 2010 from 7:30am to 9:30am an updated DOT Compliant Supervisor Reasonable Suspicion training course will be offered by EASHRM with trainers Dr. Garth Stauffer and Tommy Eden, Attorney, at a cost of $15 per person at the EAMC Health Resource Center. Sample Employee Notices will be provided as part of the course materials. To register contact Angel Scott at ascott_er@bellsouth.net for more information.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com