Substance Abuse and the Construction Site

Presented By:

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Edward G. Renner, The Law Offices of Edward G. Renner

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Substance Abuse and the Construction Site

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Prepared By:Edward G. Renner, The Law Offices of Edward G. Renner

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Substance Abuse and the Construction Site

Presented by Edward G. Renner

Assistant Vice President, Corporate Counsel

American Property Casualty Insurance Association

1

2

Purpose and Outline

Introduction

Why Construction Companies as Employers Need to Care About Substance Abuse

OSHA and Workplace Safety

Insurance – Is Your Risk Allocation At Risk?

Employee Handbook, Employment Policies, and Your Safety Program

Disclaimer, Terms of Use These course materials were prepared for an August 2019 webinar. Incorporated

U.S. Department of Labor, OSHA, or other materials from should not be taken to imply anything herein reflects the views or policies of any entity, nor do they imply any endorsement of or by the U.S. Government, Lorman Education Services, the seminar sponsor, or the presenter’s employer.

This is not compliance-based training, but rather a general seminar to increase awareness of specific hazards in the construction industry related to substance abuse.

It should NOT be assumed that the suggestions, comments, or recommendations contained herein constitute a thorough review of the applicable standards, nor should discussion of issues or concerns be construed as a prioritization of specific hazards or possible controls.

Although the presenter is an attorney, nothing herein should be considered legal advice, but rather should be considered a resource for further research or study. No business or legal decisions should be made relying solely upon these course materials, the webinar presentation, or hyperlinks provided by presenter. Nothing in presenter’s webinar materials, including answers provided during any question and answer session, are specific legal advice and attendees are responsible for obtaining such advice from their own legal counsel.

3

Disclaimer, Terms of Use (continued) No representations or warranties are made as to the thoroughness of this

presentation, the materials provided, nor any process discussed. It is the responsibility of the employer, its subcontractors, and their employees to comply with all pertinent rules and regulations in the jurisdiction in which they work. Copies of applicable OSHA regulations are available from your local OSHA office and the OSHA website.

The presenter endeavored to provide complete and accurate information, but cannot represent or guarantee that everything included in this presentation is accurate, complete, or up to date. Simply, it is presented “as is”.

Hyperlinks to other information, resources, or websites are “as is”. Neither Lorman, the seminar sponsor, nor the presenter can accept responsibility for them or for any loss or damage that may arise from your use of them. All statements and opinions expressed in such materials are the sole responsibility of the third party providing them. If you decide to access any provided hyperlink or to otherwise access content prepared by third parties, you do so entirely at your own risk and subject to the terms and conditions of use of such third party.

Why Test?

“Analyses indicate that companies with drug-

testing programs experienced a 51 percent reduction in incident rates

within two years of implementation.”

(Emphasis Added by Presenter) Citation: Gerber, J. K., & Yacoubian, G. S. (2002). An Assessment of Drug Testing within the Construction Industry. Journal of Drug Education, 32(1), 53–68. https://doi.org/10.2190/XJKE-P052-QN91-YJ6Q

4

Introduction and

Definitions

Alcohol

Caffeine

Nicotine

Prescriptions (Rx)

Illicit or Illegal Drugs

Marijuana (THC metabolite)

Cocaine

Amphetamines

Opiates (including heroin), and

Phencyclidine (PCP)

Trends

“Legal” vs. “Illicit” Drugs

5

Why do you need to care

about Construction

Site Substance Abuse?

Morale, impact to job schedule, and everyone deserves to go home safely every night

OSHA, other applicable safety laws, and regulations

Potential loss or inability to secure set aside status for noncompliance (i.e., WOSB, VOSB, SDVOSB, or MOSB)

Trend among states to legalize marijuana for medicinal or recreational use

Increased insurance rates or loss of insurability altogether

Federal Government vs. State Government Contracts

6

OSHA and Construction Site Safety

Recognizing Impairment

At-Work Impairment

Carry-Over Impairment

Your Safety Manual

OSHA andYour Safety

Program

7

Insurance and Bonding

Is your risk allocation at risk?

General Liability Insurance

Automobile Liability Insurance

Worker’s Compensation Issues

EPL Insurance

Bonding Program

Insurance as a Resource Commercial General Liability and Worker’s Compensation

Safety Program Review

Trend reporting and analysis

Professional Liability

Training and Continuing Education

Online Tools

Employer’s Practices Liability

Best Practices

Online Tools

Automobile Liability

Safe Driving Programs or Training

8

Keeping Everything Balanced

Employment Policies and your Safety

Manual

Employee Handbook and Employer Policies

Employee Handbook – Update Policies to Address Legalized Marijuana

Employer Policies – Review and Update:

Drug Testing (Pre-Employment, Random, For Cause, and Post-Incident)

ADA Considerations

HIPAA Compliance

Employment Screening re: Expunged or Pardoned Crimes Related to Marijuana

Safety Manual – Regularly Review and Update

Tool Box Talks

Equipment or Tool Use and required training or proficiency

9

Tool Box Talks

Safety Minutes

Questions and Comments?

10

Edward G. RennerAssistant Vice President, Corporate Counsel

American Property Casualty Insurance Association

8700 W. Bryn Mawr Ave., Ste. 1200S

Chicago, IL 60631-3512

(P) 847-553-3779 | (C) 312-371-4852

Edward.Renner@apci.org

Please note disclaimer.

11

Substance Abuse and the Construction Site

Presented by Edward G. Renner

Assistant Vice President, Corporate Counsel

American Property Casualty Insurance Association

12

13

Disclaimer, Terms of Use These course materials were prepared for an August 2019 webinar. Incorporated

U.S. Department of Labor, OSHA, or other materials from should not be taken to imply anything herein reflects the views or policies of any entity, nor do they imply any endorsement of or by the U.S. Government, Lorman Education Services, the seminar sponsor, or the presenter’s employer.

This is not compliance-based training, but rather a general seminar to increase awareness of specific hazards in the construction industry related to substance abuse.

It should NOT be assumed that the suggestions, comments, or recommendations contained herein constitute a thorough review of the applicable standards, nor should discussion of issues or concerns be construed as a prioritization of specific hazards or possible controls.

Although the presenter is an attorney, nothing herein should be considered legal advice, but rather should be considered a resource for further research or study. No business or legal decisions should be made relying solely upon these course materials, the webinar presentation, or hyperlinks provided by presenter. Nothing in presenter’s webinar materials, including answers provided during any question and answer session, are specific legal advice and attendees are responsible for obtaining such advice from their own legal counsel.

Disclaimer, Terms of Use (continued) No representations or warranties are made as to the thoroughness of this

presentation, the materials provided, nor any process discussed. It is the responsibility of the employer, its subcontractors, and their employees to comply with all pertinent rules and regulations in the jurisdiction in which they work. Copies of applicable OSHA regulations are available from your local OSHA office and the OSHA website.

The presenter endeavored to provide complete and accurate information, but cannot represent or guarantee that everything included in this presentation is accurate, complete, or up to date. Simply, it is presented “as is”.

Hyperlinks to other information, resources, or websites are “as is”. Neither Lorman, the seminar sponsor, nor the presenter can accept responsibility for them or for any loss or damage that may arise from your use of them. All statements and opinions expressed in such materials are the sole responsibility of the third party providing them. If you decide to access any provided hyperlink or to otherwise access content prepared by third parties, you do so entirely at your own risk and subject to the terms and conditions of use of such third party.

14

OSHA

OSHA’s Website:

https://www.osha.gov/

OSHA Drug Testing and Medical Records (Standard Interpretations):

https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11

https://www.osha.gov/laws-regs/standardinterpretations/1999-10-14-0

OSHA Hazard Identification Training Tool:

https://www.osha.gov/hazfinder/game/manual.html

OSHA Worker Safety Series Construction:

https://www.osha.gov/Publications/OSHA3252/3252.html

OSHA Safe Driving:

https://www.osha.gov/Publications/motor_vehicle_guide.html

Other Safety Resources Seminar Sponsor Avetta

https://www.avetta.com/clients/health-safety

https://www.avetta.com/resources

Substance Abuse and Mental Health Services Administration (“SAMHSA”)

https://www.samhsa.gov/workplace/legal/federal-laws/safety-security-sensitive

https://www.rti.org/announcements/samhsa-fact-sheets-preventing-prescription-abuse-workplace NOTE: Link to SAMHSA Fact Sheets is a Third Party

Society for Human Resource Management (“SHRM”)

https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_019908.aspx

15

Insurance Resources Assurance (Insurance Brokerage)

https://www.assuranceagency.com/solutions/industries/construction

https://www.assuranceagency.com/university

CNA

https://www.cna.com/web/guest/cna/managerisklevels?industry=Construction

International Risk Management Institute (Membership Required)

https://www.irmi.com/construction-resources

Nationwide

https://www.nationwide.com/business/insurance/industries/types/contractor-insurance

Chubb

https://www.chubb.com/us-en/business-insurance/construction.aspx

https://www.chubb.com/us-en/business-insurance/chubb-construction-risk-engineering-resource-center.aspx

More Resources Brown University

https://www.brown.edu/about/administration/policies/node/280

Federal Transit Administration

https://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/PolicyBuilder/CreatePolicy.aspx

Findlaw For Legal Professionals

Commercial Driver’s License Drug Testing under the Federal Highway Administration

https://corporate.findlaw.com/litigation-disputes/drug-and-alcohol-testing-rules-an-overview.html

Employer’s Obligations to Employees with Addiction(s)

https://corporate.findlaw.com/human-resources/what-are-an-employer-s-obligations-toward-alcoholic-employees.html

Substance Abuse in the Workplace

https://corporate.findlaw.com/human-resources/saving-lives-and-money-solving-substance-abuse-in-the-workplace.html

https://corporate.findlaw.com/human-resources/employment-law-employers-must-enforce-drug-testing-policies-in-a.html

16

Just In Case – Adding a Testing Policy Make the Decision

Type of Test

Scope

Write the Policy

Update Employee Handbook

Update Safety Program

Hire a Provider

National Lab

PEO

Employee Medical

Roll out to Employees

Be prepared and have written answers in advance

Q&A for new program

Regularly Review Drug Testing

Human Resources

Legal (from Labor & Employment, Compliance, Risk/Insurance, and Contracting Perspectives)

Safety/Insurance

Edward G. RennerAssistant Vice President, Corporate Counsel

American Property Casualty Insurance Association

8700 W. Bryn Mawr Ave., Ste. 1200S

Chicago, IL 60631-3512

(P) 847-553-3779 | (C) 312-371-4852

Edward.Renner@apci.org

Please note disclaimer.

17

Notes