Drugs, FMLA & Workplace Investigations Webinar | Snagajob

TODAY’S PRESENTERS
John Merrell
Shareholder
Gretchen Ewalt
Shareholder
Stephen Woods
Shareholder

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FMLA & ADAWorkplace
Investigations
Drug Testing

John Merrell
Shareholder, Ogletree Deakins
john.merrell@ogletree.com

Workplace
Investigations

Poll Question
What grade would you give
your current workplace
investigations process?

Workplace Investigations
Investigate all complaints1
Select the right investigator2
Do your homework3
Have a plan4
Let the witnesses
tell the story
5

Workplace Investigations
Consider need
for confidentiality
6
Assess credibility7
Create accurate
and complete record
8
Take corrective action,
if necessary
9
Follow through10

Have a reporting mechanism and
investigate every complaint
● Can help limit liability from claims of harassment, discrimination, wrongful termination, etc.
○ Caveat: different levels of “investigation”
1

Select the right investigator
● Must be free of
biases
● Must be willing to
dig in and drill
down
● Experience level
and level of
training
● Nature of
allegations
2

Do your homework!
● Collect relevant
documents
● Compile a preliminary
list of potential
witnesses
● Review personnel files
of relevant employees
○ Complainant
○ Accused
○ Witnesses
3

Have a plan and be thorough
● Act promptly
● Interview complainant, accused, immediate supervisors, and any witnesses they identify
○ No “perfect” order, but consider: Complainant → known witnesses → accused → additional
witnesses identified
● Get the who, what, when, and where of every alleged incident and ask for additional witnesses
4

Let the witnesses tell the story
● When talking to
witnesses other
than complainant,
don’t give details
of complaint
unless necessary
to obtain relevant
information
● Ask “Is there
anything else you
think I should
know?”
● Phrase questions
so you don’t give
unnecessary
information
● Start with broad,
open-ended
questions; get
more specific as
necessary
5

Consider the need for confidentiality
● Assure complainant you will maintain confidentiality to the extent possible, consistent with
obligation to conduct a thorough investigation
● BUT
○ Don’t promise confidentiality
○ Never agree to forego an investigation because the complainant has requested
confidentiality.
6

Confidentiality (cont’d)
● Witness confidentiality may be justified where there is a risk of:
○ Evidence being destroyed,
○ Collusion, fabrication of testimony, copycat evidence, or a cover-up,
○ Theft or misappropriation of trade secrets,
○ Retaliation against accuser, accused, or a witness, or
○ Future criminal charges

Assess credibility
● Reach a reasonable conclusion (“inconclusive” should be the exception, not the norm)
● Is the “story” credible?
● Is there corroborating or contradictory evidence?
● Does anyone have a reason to lie?
● Did any witness contradict himself/herself?
7

Create an accurate and complete record
● Take written
statements,
where
appropriate
● Prepare a
summary
● Stick to the facts
– no legal
conclusions!
● In interview
notes, include
objective facts
and objective
observations,
not subjective
assessments
● This could be
evidence
8

Take corrective action (if necessary)
● Review your policies
and past practices
● Consider severity,
frequency,
pervasiveness, past
actions and potential for
future incidents
● If evidence supports
complaint, take
appropriate corrective
action, commensurate
with wrongdoing
9

Follow through
● Instruct complainant to
immediately report
retaliation or further
harassment
● Periodically check back
with complainant
● Inform complainant of
action taken
10

Drug
Testing

Gretchen Ewalt
gretchen.ewalt@ogletree.com

Overview — Drug Testing
● State Marijuana Laws
● Anti-Discrimination Provisions
● ADA/FMLA Considerations
● Effects on Workplace Safety
● Practice Pointers
● Elements of a Defensible Drug Policy

Poll Question
What grade would you give
your screening & workplace
policies for MML compliance?

State Laws
● At least 5 states have legislation pending
○ Including Florida where a medical marijuana bill is awaiting the governor’s signature
● 8 states (plus D.C.) permit recreational marijuana
● 28 states (plus D.C.) permit some form of medical marijuana
○ Individuals who suffer from a “debilitating medical condition” are authorized to use medical
marijuana upon receipt of “registry identification card”
○ A “debilitating medical condition” can meet definition of disability under applicable state and/or
federal law

What Do MMLs Mean for You?
● Most MMLs provide that employers are not required to accommodate intoxication, use, or
possession in the workplace
● However, 11 states [AR, AZ, CT, DE, IL, ME, MN, NY, NV, PA, and RI] contain anti-discrimination
provisions
○ [A]n employer may not discriminate against a person in hiring, termination, or any term or
condition of employment, or otherwise penalize a person, if the discrimination is based upon . .
. a patient’s positive drug test for cannabis . . . unless the patient used, possessed, or was
impaired by medical cannabis on the premises of the place of employment or during the hours
of employment.
Minn. Stat. Ann. § 152.32(3)(c).

What Do MMLs Mean for You?
● Some states expressly allow employers to enforce
their drug-free workplace policies:
○ CA
○ CO
○ DE
○ IL
○ MT
○ NV
○ WA

ADA/FMLA Considerations
● No duty to accommodate illegal drug use
● Recovering addict provisions
● But, employer may have a duty to engage in the interactive process if the employer has
reason to believe the employee is disabled
● Employer may also have to consider whether FMLA or other leave is appropriate for
underlying medical condition

Practice Pointers
● Legalization ≠ accommodation
○ No requirement under state law (except in 11 states [AR, AZ, CT, DE, IL, ME, MN,
NY, NV, PA, and RI]) to accommodate medical use
● Duty to provide safe workplace paramount
○ No state currently restricts employer prohibition on recreational use
○ Beware “lawful off-duty conduct” litigation
● Establish and communicate clear drug policies
○ Employers (except in AZ, CT, DE, IL, ME, MN, NV, PA, and RI)
may enforce drug testing policies to exclude employees who
test positive for marijuana
○ Beware ADA risks in drug tests positive for Rx drugs
○ Drug testing policies must be uniformly enforced to avoid discrimination claims

Elements of Defensible Drug Policy
● Confront medical and recreational marijuana use in policy
● Reference (explicitly) the federal law prohibition on marijuana
● Prohibiting “working under the influence” is not enough
○ Must make it impermissible to have “any detectable level of any illegal
controlled substance” in the employee’s system
● Informed consent for testing
● Which employees are covered?
● When will tests occur?
● Will the employer provide employee assistance (rehab)?
● Beware state-specific provisions: one size does not fit all!

FMLA & ADA

Stephen Woods
stephen.woods@ogletree.com

Poll Question
Has your company received
an FMLA or ADA request in
the last 18 months?

Goals of Employer FMLA Rules
Discourage
“risk-weighers”
Catch cheaters and weed
them out of the workforce
1 2

Create procedures
designed to make
clear “risk weighers”
will be caught
2
Interrogate
3
Crack down
on abuse
1
Discourage “risk-weighers”
FMLA

Discourage “risk-weighers”
FMLA
■ Strengthen call-out policy
■ Discipline for failure to follow
■ Push for better notice
■ Count absences if late notice received
■ Alert Leave Management Team (and
supervisors?) of patterns
■ Update job descriptions to get more
information
■ Push back on incomplete or inaccurate
Certifications
■ Request new certifications every 6 months or
when absences exceed those approved in
current Cert.
■ Use interrogation tactics
■ Be sure to engage in ADA interactive process

Call-Out Policy
FMLA
WHO
Employee
should call,
not proxy
WHAT
Reason for and
expected length
of absence
WHEN
As soon as
practicable
(practical and
possible)
WHERE
Where must
employee call?
HOW
Verbal notice

Call-Out Considerations
FMLA
Employer obligations under FMLA
● Communicate with employee
● Send information
Consider adding requirements for the
employee to advise:
● Initial: Where he/she can be reached
● During: Where he/she can be
reached if phone/address changes

Are you sure you need to take this
leave?
● For what?
● Is this already approved?
What functions can you not
perform?
How are you going to get yourself
home if you are incapacitated?
Is it medically necessary
for you to take the leave?
Is there any way you would
be able to continue working?
If you can drive,
how can you not work?
Interrogation
FMLA & ADA

ADA: How to reasonably accommodate
Do not have to—and shouldn’t—
use terms “disability,”
“reasonable accommodation,”
or “interactive process” in
discussions with the employee
Review current job description and
any available physical job analysis
for other positions considered
Receive input from employee
about his/her limitations
Identify potential accommodations
and assess how effective
each would be, including
discussions with employee
and with internal HR/Legal
Review medical documentation
concerning employee’s
condition and work restrictions,
when appropriate
If possible, identify essential
and nonessential functions
of job duties and job purpose
Engage in good
faith, interactive
process with
employee

Making facilities
accessible and
useable
Restructuring jobs
Creating part-time
or modified work
schedules
Reassigning to
vacant positions
Acquiring or
modifying
equipment or
devices
Adjusting or
modifying
examinations,
training
materials or policies
Providing qualified
readers or
interpreters
Providing leave
Reasonable accommodations - examples
ADA

Would cause undue hardship
When an employer is excused from ADA duty to accommodate
When accommodation ...
Is a direct threat to the health
and safety of coworkers
or to employee him/herself
1 2

An action requiring
significant difficulty
or expense ...
Undue hardship
ADA
Nature and cost of
accommodation needed
Overall financial
resources of facility
or facilities involved
Number of persons
employed at facility
Effect on expenses and
resources, or impact
otherwise of such
accommodation
Overall financial
resources of employer
Overall size of employer’s
business with respect to
number of employee
Number, type and
location of facilities
Type of operation or
operations of employer,
including workforce
composition, structure
and functions
Geographic separateness,
administrative or fiscal
relationship of facility or
facilities to employer

Policy
❑ Revise LOA policies to include accommodative
leave
❑ Include period for a neutral absence control policy
— that takes accommodative leave into account
Tips for administering leave as an accommodation
Ensuring ADA Compliance, Shortening Leave Periods, and Reducing Abuse
Implementation
❑ Grant leave extensions in shorter increments;
require new documentation showing leave is on
track to be definite
❑ Document indefinite nature of leave in
communications with employee and/or physician
❑ Require physician to estimate return date with
“reasonable medical certainty”
❑ Require physician to represent that the definite
leave will allow the employee to perform essential
job functions

Activity ID: 320623
Credit Hours Awarded:
1 (HR General)
Activity ID: 17-V3AKG
Professional Development
Credits (PDCs): 1
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Drugs, FMLA & Workplace Investigations Webinar | Snagajob

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