DB - 9 Legalization

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PRINTED BY: [email protected]. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. Resource Management (SHRM) poll revealed, 55 percent of employers use drug testing in hiring employees, whereas 80 percent of employers conduct “reasonable

suspicion” workplace drug testing. 75

Drug-Free Workplace

The Drug-Free Workplace Act of 1988 applies to employers who have contracts of $100,000 or more with the federal government or who receive aid from the government. Those employers are required to develop an antidrug policy for employees. They must provide drug-free awareness programs for employees, and they must acquaint employees with available assistance for those with drug problems, while also warning them of the penalties that accompany violation of the policy. The act requires employees to adhere to the company policy and to inform the company within five days if they are convicted of or plead no contest to a drug-related offense in the workplace. [For more information on the Federal Drug-Free Workplace Program, see www.workplace.samhsa.gov/]

Drug Testing in Law and Practice

Drug testing is regulated primarily by state law so generalizations are difficult. Broadly, we can say, however, that private-sector drug testing, properly conducted, ordinarily is lawful in the following five situations:

1. Preemployment testing. State and local law may impose some restrictions. 2. In association with periodic physical examinations. Advance notice is often required. 3. For cause. An employer has probable cause or reasonable suspicion. 4. Postaccident testing where drug use is suspected. 5. Follow-up testing for those returning from drug (or alcohol) rehabilitation.

Random testing, on the other hand, sometimes produces significant legal issues. A number of states forbid random drug testing or limit it to safety-sensitive situations. The U.S. Supreme Court has upheld such testing for public-sector employees where public safety is involved and for those having

access to particularly sensitive information. 76

The legality of drug testing often reduces to a balancing test where the employee's right to privacy is balanced against the employer's business needs. Where safety and secu rity are involved and when notice is provided, the courts are more supportive of testing. Particularly intrusive or careless testing often tilts that balance toward employees. Beyond the balancing test, a number of other legal considerations influence employer drug-testing practices, particularly in public-sector jobs:

1. U.S. Constitution. As explained in Chapter 5, the Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures. Thus, government employers ordinarily cannot conduct a search without individualized suspicion—that is, without probable cause. Certain exceptions, however, have been recognized in cases involving such issues as safety, national security, and athletic participation. Remember that the U.S. Constitution protects citizens from the government, not from private-sector employers (with limited exceptions).

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2. State constitutions. Many state constitutions offer privacy protection, but court decisions, to

date, have generally not extended those protections to private-sector employers. On the other

hand, certain states, such as California and Massachusetts, explicitly offer constitutional

protection to private-sector employees.

3. Federal statutes. Drug testing could violate Title VII of the Civil Rights Act of 1964 or the

Americans with Disabilities Act (see Chapter 13) if the testing fails to treat all individuals

equally. The ADA protects recovering drug addicts and those erroneously believed to be drug

abusers, but not employees or applicants who are currently abusing drugs.

4. State and local statutes. Historically, most state and local drug-testing legislation placed limits

on that testing, but in recent years, fears about drug use in the workplace and often intense

business community lobbying have, in some cases, relaxed those testing restraints.

5. Common law claims. Some of the more prominent judge-made (common law) claims that

might provide a challenge to drug testing include invasion of privacy, defamation

(dissemination of erroneous information about an employee), negligence (in testing or in

selecting a test provider), intentional infliction of emotional distress, and wrongful discharge

(discussed later in this chapter).

Legalizing Marijuana … in the Workplace?

Colorado and Washington have legalized the possession of up to one ounce of marijuana for

personal use. Although marijuana is considered an illegal drug under the federal Controlled

Substance Act, the U.S. Department of Justice announced in August 2013 that “at this time,”

the federal government was, “deferring its right to challenge” the laws passed by Colorado and

Washington, given that both states had promised to create a “strict regulatory system.”

Question

What impact might these laws have on Colorado and Washington employers’ drug-testing

policies and practices? Explain.

Sources: Niraj Chokshi, “Marijuana Sales Commence in Colorado for Recreational Use,” The Washington

Post, January 1, 2014 [www.washingtonpost.com/politics/marijuana-sales-commence-in-colorado-for-

recreational-use/2014/01/01/977040d0-7320-11e3-8b3f-b1666705ca3b_story.html]; National

Conference of State Legislatures, “Medical Marijuana Laws,” March 27, 2014

[www.ncsl.org/research/health/state-medical-marijuana-laws.aspx]; and U.S. Department of Justice,

“Justice Department Announces Update to Marijuana Policy,” August 29, 2013

[www.justice.gov/opa/pr/2013/August/13-opa-974.html].

Part Six—Employee Benefits and Income Maintenance

In recent years, employee benefits have been the subject of political debate and legislative action, and

the object of employers’ reactions to an uncertain economy. 77

For example, in the last five years as

health insurance costs rose, the number of workplace wellness

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PRINTED BY: [email protected]. Printing is for personal, private use only. No part of this

book may be reproduced or transmitted without publisher's prior permission. Violators will be

prosecuted.

initiatives—discussed previously in this chapter—also increased. During the economic

downturn, one-third of employers reported reducing the scope of health care benefits or

increasing cost-sharing, although the number of employers offering health care benefits

actually increased. 78

The 2010 Patient Protection and Affordable Care Act (ACA; colloquially labeled

Obamacare), which became effective in 2014, has raised concerns that employers’ decisions to

provide health insurance coverage will be negatively impacted. However, as discussed below, surveys

throw into question the actual impact of the ACA on employers’ practices.

Notably, the number of Americans without health insurance dropped in recent years. This increase

in coverage has been attributed to government programs. 79

Under the ACA, which became effective in 2014, employers with 50 or more employees that do

not provide affordable health insurance coverage for their employees will face penalties. Those with

fewer than 50 employees that do not provide health insurance will not face a penalty, but are eligible

for tax credits. Critics argue that this amounts to a mandate for larger employers to provide health

insurance for their employees in order to avoid paying penalties, or contrarily, to provide an incentive

for employers for whom health care costs outweigh the penalties. A 2013 survey by the International

Foundation of Employee Benefit Plans found that 69 percent of employers planned to continue their

health care coverage after ACA became effective in 2014; an increase from the 46 percent of

employers in 2012 that intended to do so. 80

A 3 to 4 percent increase in costs are typically

anticipated. 81

These numbers could be viewed either as a sign that some employers will opt out of

health insurance, or as evidence that most employers will still offer health care plans under the ACA.

In 2012, the U.S. Supreme Court rejected a constitutional challenge to the ACA, holding that the

individual penalties under ACA could be deemed as a tax, which Congress has the power to levy. 82

[For more information on ACA, see https://www.healthcare.gov/]

The federal Consolidated Budget Reconciliation Act (COBRA) requires employers with 20 or

more employees to permit departing employees to retain group health coverage at their own expense

for up to 18 months as long as they are not terminated for gross misconduct.

Unfortunately, COBRA policies are often too expensive for workers who have lost their jobs. The

American Recovery and Reinvestment Act of 2009 provides health benefit premium reductions for

those who were involuntarily unemployed within a particular time frame. 83

Along with health care, another pressing social issue affecting the workplace is the care of children

and elderly parents: 29 percent of adults in the United States are caregivers to an elderly parent or

child with special needs. They provide care an average of 20 hours per week. Approximately three-

fourths of these caregivers work outside the home while caregiving, and an increasing number of

them report having to make workplace accommodations. 84

Family Leave

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take

job-protected, unpaid leave for certain family-related or medical reasons. Eligible employees are

entitled to 12 weeks of FMLA leave in a 12-month period for the birth, adoption, or

foster care placement of a child, to care for a child, spouse, or parent who has a serious

medical condition, or for the employee's own serious medical condition. Employees

taking leave are entitled to reinstatement to the same or equivalent job. Employers with 50 or more

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employees are covered by FMLA. The 2008 National Defense Authorization Act (NDAA) amended

FMLA to provide military family leave to eligible employees to care for their spouse, child, or parent

who is undergoing medical treatment for a serious injury or illness incurred in the line of duty, or for

“qualifying exigencies” including child care and counseling arising from their spouse's, child's, or

parent's call to active duty status from the military reserves. 85

However, under a 2012 U.S. Supreme

Court decision, state workers who are denied sick leave cannot sue the states that employ them under

the FMLA. 86

Although most worksites are not covered by the FMLA, over half of American employees are

eligible for its protections, reflecting the FMLA's coverage of larger workplaces. 87

Lost wages often

make FMLA leave unattractive; however, approximately two-thirds of employees taking FMLA

leave receive either full or partial pay, typically by using paid vacation leave, sick leave, or other

forms of paid time off. 88

Employers in California, New Jersey, and Rhode Island must provide paid

family and medical leave; all three states fund these programs through employee-paid payroll taxes. 89

The State of Washington passed such legislation but, at this writing, has indefinitely postponed its

implementation. 90

[For more on the FMLA, see www.dol.gov/whd/fmla/]

Work Abroad?

Of the 38 countries represented in a 2013 study, the United States stood alone as a nation not

mandating paid leave for new mothers. In comparison, Estonia offers about 2 years of paid

leave, and Hungary and Lithuania offer 1½ years or more of fully paid leave. The median

amount of fully paid time off available to a mother for the birth of a child is about 5 to 6

months. In most countries providing paid leave, the government pays the bill.

Source: Gretchen Livingston, “Among 38 Nations, the U.S. Is the Outlier When It Comes to Paid Parental

Leave,” Pew Research Center, December 12, 2013 [www.pewresearch.org/fact-

tank/2013/12/12/among-38-nations-u-s-is-the-holdout-when-it-comes-to-offering-paid-parental-

leave/].

Unemployment Compensation

The tragedy of the Great Depression, when up to 25 percent of the workforce was unemployed, led in

1935 to the passage of the Social Security Act, one portion of which provided for an unemployment

insurance program. Today, all 50 states and the federal government are engaged in a cooperative

system that helps protect the temporarily jobless. The system is financed through a payroll tax paid

by employers.

The actual state tax rate for each employer varies, depending on the employer's experience

ratings—the number of layoffs in its workforce. Thus, employers have an incentive to retain

employees.

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