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Sunday, December 4, 2016

Making America's Workplaces Safe Again















Making America's Workplaces Safe Again
To:              Trump Transition Team
From:      Tommy Eden, Partner Constangy, Brooks, Smith & Prophete, LLP; Practice Head: Workplace Drug & Alcohol Testing

My webinar presentation, Standing Firm! Marijuana in the Workplace Solutions is a good annotative source for information on this subject. Also see: Workplace Drug Testing in the Era of Legal Marijuana, released in 2015 by the Institute for Behavior and Health, Inc. (IBH), a non-profit organization developing strategies to reduce drug use. Tommy Eden was a contributing panel member. National Families in Action, a drug policy and education organization, also released a white paper in 2015 entitled What Will Legal Marijuana Cost Employers that examines problems employers are facing in states that have legalized marijuana for medical or retail use.

The Drug Problems Facing America:
·  marijuana is an impairing effect drug inconsistent with a safe accident free productive workplace;
·  impairing effect medications taken by safety sensitive workers are inconsistent with an employer's duty under OSHA section 5(a) to provide workers a safe place to work free from known hazards;
·  marijuana and impairing effect medication use is rampant across America and a record number of Americans have become drug abusers and addicts over the past decade;
·  America is in the midst of an opiate addiction crisis;
·  80% of drug abusers are employed;
·  a record number of states have adopted medical and recreational marijuana statutes in the last election cycle, many of which grant employee protection to medical marijuana card holders;
·  this has created enormous confusion amongst employers across America;
·  an aggressive EEOC has sued employers under the Americans With Disabilities Act who seek to control the use of impairing effect medications by safety sensitive employees in the workplace;
·  many employers are slowly giving up the drug-free workplace fight after former Attorney General Eric Holder in his August 2013 memorandum to all US attorneys waved the white flag of surrender to the war on drugs; and
·  if immediate action is not taken America will no longer have a large workforce of motivated and unimpaired employees with the requisite mental capacity and drive to be a world-class economy.

If America is going to truly be great again, having a large number of unimpaired highly motivated workers is critical to America's success in the world marketplace. Saving factory jobs, or bringing them back from overseas, is of little good if there are not enough workers who can work in a constant state of alertness and safe manner on the job. Alertness on the job and safety are totally inconsistent with the use of marijuana and impairing effect medications.

Possible Solutions:
1. reinstatement a Drug Czar who has fought the good fight before against drugs in the workplace and won - such as Robert L Dupont MD, the first Drug Czar and currently the President of the nonprofit organization in Washington DC, the Institute for Behavior and Health, Inc;
2. demand reduction by the employed workforce in America is the quickest, cheapest and most effective solution to America's war on drugs;
3. give employers the weapons to fight the war on drugs by removing the Americans With Disabilities shackles. Examples include: 1) removing “alcohol testing” as a medical exam; 2) remove impairment testing of safety sensitive employees from the definitions of medical testing or medical inquiry; 3) remove pre-duty prescription medication disclosure by safety sensitive employees from actions that may be considered a medical inquiry; and 4) remove expanded panel drug testing of safety sensitive employees from the list of actions which may be considered a medical inquiry or medical testing;
4. remove the FDA jurisdiction over the use of rapid screen drug and alcohol testing devices being used for workplace drug screening and not for forensic purposes;
5. speed up the Department of Health and Human Services adoption of final regulations on oral fluid drug testing, and also the adoption of regulations by the Department of Transportation of oral fluid drug testing;
6. speed up the Department of Health and Human Services adoption of regulations on hair drug testing, and also the adoption of regulations by the Department of Transportation of hair drug testing;
7. amend the Federal Drug Free Work Place Act Executive Order 12564--Drug-free Federal workplace so that employers nationwide may just say no to accommodating request for use of use of medical marijuana by safety sensitive employees, regardless of state statutes;
8. amend the Federal Drug Free Work Place Act Executive Order 12564--Drug-free Federal workplace to grant employers nationwide a Worker's Compensation Premium Discount if they adopt a drug-free workplace testing program, much like the program which is working successfully in 15 other states;
9. direct the DOJ to assist employers to win courtroom battles against state marijuana laws that are harmful towards maintaining a drug-free work -consider building this issue into the Federal Drug Free Work Place Act;
10.                make drug use uncool through a nationwide social media campaign.

Please let me know how I, or our firm, might be of service on this issue to the incoming Trump Administration.

Questions:             Tommy Eden, Esq.
                              teden@constangy.com
                              334.246.2901 office direct
                              205.222.8030 cell
                              3120 – D Frederick Road
                              Opelika, AL 36801
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