Alcoholism – Common Myths

Did you know, alcoholism is covered by the Americans with Disabilities Act (ADA) and people with the disease must be offered reasonable accommodations, such as time off for rehab or to attend Alcoholics Anonymous meetings?  It is true.

Abuse of alcohol is not excluded from ADA protection.  Drinking on the job, being drunk or under the influence on the job is unacceptable and the employee may be disciplined.

Alcohol testing may not be required before a conditional offer of employment has been made.  Current workers may be assessed only if there is reasonable suspicion the person has been drinking.  OSU offers training on our drug free policy and during the training reasonable testing is discussed.

HR Magazine March 2016, “Common Myths About Alcoholism”, by Allen Smith, JD


Medical Marijuana Law

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law.

The good news for employers is that the new law will not require changes to your workplace drug testing or drug-free workplace policies. Employers are free to continue drug-free workplace policies and drug-testing, even if the policies adversely affect employees who legally use medical marijuana.

Here are the key points you need to know:

  1. Employers are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana.
  2. Employers can refuse to hire, discharge, discipline or take other adverse action against employees who use, possess or distribute medical marijuana.
  3. Employees cannot sue employers for adverse action based on medical marijuana use.
  4. Employees terminated under workplace drug testing or drug-free workplace policies will be considered terminated “for cause” and will not receive unemployment benefits.
  5. Employers can establish and enforce drug testing, drug-free workplace and zero-tolerance policies.
  6. Federal restrictions on employment, including U.S. Department of Transportation (DOT) mandated testing remain valid.
  7. Drug testing policies under the Ohio Bureau of Worker’s Compensation’s Drug-Free Safety Program (providing workers’ compensation premium rebates) remain valid.
  8. The rebuttable presumption that an employee is ineligible for workers’ compensation benefits if the employee, when under the influence of medical marijuana, causes his/her own workplace injury remains valid.

Marijuana use, including medical marijuana, remains illegal under federal law. This also means that there is no duty under the Americans with Disabilities Act (ADA), as amended, to accommodate medical marijuana use in the workplace. Some employers, however, may seek to change their policies to permit or accommodate employees’ lawful use of medical marijuana. Any employer considering such an exception should consider potential economic costs, safety risks, and employee morale implications before making any changes. The good news for now is that no changes must be made to workplace drug and alcohol policies and testing programs

Ohio’s new law legalizing medical marijuana includes key exceptions for employers

By Jamie LaPlante on June 15, 2016, Employer Law Report.

Tips for Handling Difficult Performance Conversations

Don’t delay the conversation.  While many people are uncomfortable with confrontation it is necessary.  While the manager delays the conversation the employee may be very aware that a performance discussion is coming and use that to his/her advantage.  The employee may consult with an attorney, allege a legal wrong, engage in a protected activity or take protected leave (e.g. FML).

Avoid chitchat, as people often try to break the ice with casual chatter.  In some cases a well-intentioned question may result in a discrimination claim.

Document the conversation in writing.  Prepare for the conversation, list talking points for yourself.  Have a document for the employee, consider giving the employee the coaching memo at the beginning of the meeting and allowing him/her to read/review it.

Provide specific examples to the employee of the problem behavior.

Avoid focusing on intent as it is largely irrelevant.  Don’t focus on “you don’t care” or “you’re not trying”.  Focus on the negative affect on the department and the results.

Stay away from “why?”  Do not inquire or speculate as to whether a condition the employee has or work/life management challenge is part of the performance deficiency.  If the employee is asked if he/she is depressed, the employee may have a perceived disability claim under ADA.

Make no excuses, if the employee’s failings are due to the organization, the employee should not be held accountable.

Watch for code words, such as the organization won’t allow….  Be sure there is no bias.

Avoid absolutes.

Listen; give the employee an opportunity to talk.

Clarify expectations, clarify the problems and articulate what expectations are moving forward.

HR Magazine April 2016, “That Difficulty Conversation”, by Jonathan Segal