STREETDRUGS UNIVERSITY

Publishers Group

OSHA / DOT

Phone: 763 473-0646

Fax: (763) 404-0725

E-mail: info@streetdrugs.org

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Although OSHA has no specific regulations addressing substance abuse on the job, it has on several occasions issued citations to employers who, the agency found, had workers who had illegal drugs in their systems or were under the influence of alcohol at the time workplace accidents occurred. Those citations are issued under OSHA's General Duty Clause Section 5(a)(1) of the Occupational Safety and Health Act of 1970. Citations for violating the General Duty Clause are issued when an employer fails to keep his workplace free of a "hazard"; the hazard was "recognized" either by the cited employer individually or the employer's industry generally; the recognized hazard was causing or was likely to cause death or serious physical harm; and there was a feasible means available that would eliminate or materially reduce the hazard.

 
OSHA General Duty Clause violations related to substance abuse have brought civil penalties as high as $21,000 per citation (some cases involved multiple citations arising from the same drug- or alcohol-related accident). In an interpretative letter issued in May 1998, the agency wrote to the safety coordinator of Starline Manufacturing Co. Inc., Milwaukee: "OSHA strongly supports measures that contribute to a drug-free environment and reasonable programs of drug testing within a comprehensive workplace program for certain workplace environments, such as those involving safety-sensitive duties like operating machinery. Such programs, however, need to also take into consideration employee rights to privacy." OSHA again is turning its focus to this issue and recently published a fact sheet about substance abuse in the workplace and safety.

The government notes drug use is greatest among construction industry employees and alcohol and other drug use costs U.S. businesses an estimated $102 billion every year in lost productivity, accidents, employee turnover and related problems.

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Still not convinced a substance-abuse prevention policy makes sense for your workplace? Consider the following facts (sources include the National Drug-Free Workplace Alliance, DOL, and Department of Health and Human Services' Substance Abuse and Mental Health Services Administration): A majority (74 percent) of current illicit drug users 18 or older are working either full-time or part-time. This means 12.4 million drug addicts are actively employed in the workplace with the highest percentage working in the construction industry. The job classification with the highest rate of active drug use (17.2 percent) and illicit drug use within the past year (25.9 percent) is "construction supervisor." An additional 13 percent of construction supervisors admit to current heavy alcohol use. That means the unsafe and negligent actions of a drug-using supervisor will be directly imputed to an employer for purposes of tort liability and OSHA enforcement actions because those individuals are considered "agents" of management. Drug users—at a minimum—consume almost twice the medical benefits as nonusers, are absent 1.5 times as often and account for more than twice as many workers' compensation claims. Accidents and injuries create severe hardships not just for victims but also for employers. A serious incident, especially if related to alcohol or other drug use, can shut down a small business because of the financial effects of litigation. Most important, there is clear evidence a substance-abuse prevention program will save the lives of substance abusers and their co-workers. Don't let your company be the employer of choice for active drug addicts and alcoholics. The stakes are too high.

Considerations

FMLA was enacted in 1993 to assist workers in balancing their family lives and work by letting them take reasonable unpaid leave for certain family events and medical reasons. DOL's Wage and Hour Division enforces FMLA. The act provides that certain employers (those who employ 50 employees or more) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave to care for a newborn, newly adopted or newly placed foster child; to care for a child's, parent's or spouse's serious medical condition; or to care for their own serious medical condition that renders them unable to perform essential job functions. Workers exercising FMLA leave have their jobs protected, which means employees cannot be fired while on leave or retaliated against for requesting leave. Furthermore, they must be given the same job or a similar job when they return. The employer must continue group health insurance benefits during the employee's leave on the same terms provided when the employee was working. FMLA interfaces with substance-abuse issues because an employee's decision to seek in-patient treatment for alcoholism or drug addiction qualifies as treatment for a "serious medical condition." Therefore, the worker's job must be held open during this period, and there can be no retaliation against the worker for using the FMLA leave available. Also, note some state laws may have even longer periods of leave available for this purpose (e.g., the District of Columbia's family and medical leave period extends 16 weeks). Possible tort litigation

Aside from what OSHA or DOT can do to an employer who fails to provide a workplace free from the hazards of impaired workers, the prevalence of drug-free workplaces has established a "standard of care" relied on by judges and juries in tort litigation. A roofing contractor could be sued, for example, if a non-employee was injured or killed as a result of the actions of an impaired employee who was under the direction and control of the contractor. This is because no workers' compensation shield exists to insulate employers from civil suits. If the injured or killed person was the employee of another contractor on the site, that contractor's insurance company likely would seek to be indemnified by the roofing contractor. And if a member of the public was harmed by roofing materials dropped by the impaired worker or in a traffic accident while the impaired worker was driving a company vehicle, for example, there would be even greater potential tort damages. It is worth noting that if OSHA also cited the roofing contractor in such an instance, the OSHA citation would constitute negligence per se in any subsequent civil proceeding, making it only necessary to sort out the amount of monetary damages.   

FMLA

With respect to commercial drivers, the Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of employees who operate safety-sensitive transportation in aviation, trucking, railroads, mass transit, pipelines and other transportation industries. The rules apply to operators of commercial motor vehicles—both intrastate and interstate.

With regard to the roofing industry, "commercial motor vehicle" means a motor vehicle used in commerce to transport passengers or property if a vehicle has a gross combination weight rating of 26,001 pounds (11794 kg) or more or, regardless of size, is used in the transportation of materials found to be hazardous and requires the vehicle to be placarded. Some cranes and heavy trucks used to transport construction materials, tars or asphalt may fall within this classification. DOT publishes rules about who must conduct drug and alcohol tests, and these are codified as 49 CFR Part 40. The rules explain how to conduct those tests and what procedures to use when testing. (A complete discussion of the requirements is outside the scope of this article.) About 12.1 million workers are covered by DOT rules, which are regulated under the agency's Office of Drug & Alcohol Policy & Compliance. The rules also apply to employees who have blood alcohol tests performed that result in readings of 0.04 or higher (about one-half the legal limit in most states).

DOT