Monthly Compliance Calendar Alert - Keep Your Company Compliant in September: Drugs and Alcohol, Inspections and Searches on Company Property

If you are in HR, you are no stranger to compliance management, forms, and deadlines—though keeping them all in order may be a different story. We want to be sure you are equipped with the right information to keep everything on track throughout the year, from ACA to FLSA.

That is why we put together the HR compliance calendar, to bring you an important list of dates and deadlines you need to know to keep your workplace on track.

In this month’s compliance calendar, you will find the key topics to keep your Company up-to-date including employee awareness and required or recommended training.

*NEW: Monthly Compliance Calendar Consultations – A monthly phone consultation with a Compliance Consultant to guide you through HR compliance tasks and topics and how they apply to your Company. Includes state, local, and industry requirements. Reach out to your dedicated HR Consultant to find out how to schedule your monthly Compliance Calendar Consultations!

• Not applicable to HUB100 or GHR Hotline Clients

Holidays

• Labor Day – First Monday in September

Important Dates and Deadlines for this Month

September 10

• Employees are required to report to you tips of $20 or more earned during August.

September 30

• End of Q3, calendar year. *

Topics to Discuss and/or Review

1. Review of Drug and Alcohol Policies. For clients with access to the Forms Library, references to this section can be found in the folder “Drugs and Alcohol.”

• Does the Company require pre-employment screening?
• Determine if the Company has any applicants applying for DOT Safety positions or has employees in DOT Safety positions.
• Review DOT guidance about how the public health emergency has affected drug-and-alcohol testing requirements.
• Update any Drug-Alcohol Authorization Forms.
• Go over any Last Chance Agreements.

1. Check laws regarding drugs and alcohol.

• Disability laws — A substance abuser may be protected by the ADA and other disability laws. However, you can still enforce your drug and alcohol policies against disabled employees.
• Alcoholism — If it is serious enough, alcoholism can be a disability even if the employee is still drinking.
• Drug abuse — Addiction to illegal drugs is an ADA disability unless the person is "currently" using drugs. Some courts have interpreted this to mean drug use within the past six weeks. If the drug-addicted employee has not used drugs during that time, he has an ADA-protected disability.
• Occupational Safety and Health Act — Under the OSH Act's "general duty clause," you must provide a workplace free of recognized hazards that cause or are likely to cause death or serious physical harm if it is feasible to eliminate or reduce the hazard. Under this clause, you may have a duty to make sure employees who operate machinery are not drunk or on drugs.
• Negligent hiring and retention — If an employee harms other employees, customers, or innocent bystanders because of her use of drugs or alcohol, you may be liable if you could have found out through reasonable efforts that she was dangerous. Example: You could be liable for letting an employee with a drinking problem drive a company truck if he crashes into someone while drunk.
• Workers' compensation — In most states, a worker who is injured on the job cannot recover workers' compensation benefits (or can only recover reduced benefits) if the injury was caused by his use of alcohol or illegal drugs. Research your state's workers' comp laws.
• Family and Medical Leave Act — Substance abusers may be protected by the FMLA or your state's leave law. Eligible employees may be entitled to up to 12 weeks of unpaid leave for the treatment of their substance abuse problem. Absences caused by the employee's use of the substance, rather than for treatment, do not qualify for FMLA leave.
• Collective bargaining agreement — If your CBA requires "just cause" for firing, an arbitrator could decide that substance abuse isn't just cause.
• COBRA — Under COBRA you can deny continuation coverage to employees who are fired for gross misconduct. Using alcohol or drugs may constitute such gross misconduct.
• USERRA — Under USERRA, you may fire a reemployed veteran only for cause during her first six to 12 months back on the job (length of time depends on her length of military service). USERRA regulations define "cause" as the employee's conduct (but it must be reasonable for the employer to fire someone for that action and the employee must have notice that she could get fired for it) and other legitimate business reasons that result in the employee's job being eliminated or the employee being laid off.
• State laws — Some states may have their own laws prohibiting disability discrimination, governing workplace safety, and regulating the administration of drug tests to employees. Research your state's laws.

1. Go over reasonable suspicion guidelines. For clients with access to the Forms Library, references to this section can be found in the folder “Drugs and Alcohol.”

• Check if certain state laws apply for testing purposes. – (CA Employers: You may require a drug test of existing employees only in the following circumstances:
• Reasonable grounds or suspicion exist and justify a drug test.
• There is a clear and present physical danger to the employee, other employees, or members of the general public.
• Employees are granted the opportunity to have drug test samples tested a second time by another drug testing facility.
• Additional requirements exist under the Federal Motor Carriers Safety Administration, the Federal Railroad Administration (FRA), the Federal Aviation Administration (FAA), the Federal Transit Administration (FTA), the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the United States Coast Guard (USCG). Employers covered by any one of these acts are responsible for conducting a controlled substances and alcohol testing (CSAT) program that includes pre-employment testing, post-accident testing, random testing, and reasonable suspicion testing.)
• Provide and discuss any Drug and Alcohol information on proper conduct and testing to employees.
• Create a reasonable suspicion checklist. Reasonable-suspicion-based testing could be prompted by some of the following observations:
• Strong odors.
• Questionable movements, twitching, or staggering.
• Dilated or watery eyes.
• Flushed, confused, or blank facial expressions.
• Slurred speech or an inability to verbalize.
• Argumentative, irritable, or drowsy behavior.
• Sleeping, falling unconscious, or otherwise being nonresponsive.
• Provide training to supervisors and managers on reasonable suspicion procedures, like confidentiality, observation, documentation, reporting, and disciplinary procedures.

1. Look up Marijuana guidelines for the State[s] the Company operates in. For clients with access to the Forms Library, references to this section can be found in the folder “Drugs and Alcohol.”

• When it comes to marijuana, because it continues to be an illegal substance under federal law, in most instances employers are not required to permit employees to use, possess, or have pot in their system while working.
• Check State law for recreational and medical use of marijuana.

1. Determine if the Company offers an Employee Assistance Program (EAP) and discuss with appropriate management if the implementation of an EAP can be helpful to the Company. For clients with access to the Forms Library, references to this section can be found in the folder “Benefits.”
2. Discuss and implement a policy (if applicable) how employees should handle alcohol being served at business-related events and functions. For clients with access to the Forms Library, references to this section can be found in the folder “Drugs and Alcohol.”
3. Review procedures and policies for conducting inspections and searches of Company property. For clients with access to the Forms Library, references to this section can be found in the folder “Company Property.”

• See the “How to Lawfully and Legally Search Employees” - for clients with access to the Forms Library, this document can be found in the folder “Drugs and Alcohol.”
• Be cautious when conducting searches of employer-owned property or equipment used by an employee. Generally, searches or inspections should be conducted in the presence of at least two supervisors or management personnel and the employee who last used the employer-owned property or has that property in their possession.
• There may be additional state requirements so an employer should be sure that any policy it adopts complies with any applicable laws and regulations.
• Because the law on this topic is rapidly evolving, it is best practice for an employer to:
• Adopt a written policy and publish it, so that all employees are aware of the policy and such policy should be applied uniformly and consistently so that individual employees do not feel that they are being targeted or discriminated against;
• Create a policy that is reasonable, so that employees do not feel that they are constantly under inspection every time they use employer-owned property;
• Warn employees in advance that employer property will be subject to search and random inspection will lower employee expectations of privacy and make employees less likely to complain about searches; and
• Conduct inspections and searches only for legitimate reasons and with an appropriate scope so that the employer does not unwittingly enter into any illegal territory.

Tips

More information in reference to the topics discussed in this month’s compliance calendar can be found in our comprehensive online Forms Library, which is available to members 24/7.

Note: This calendar is designed to help our clients review the key human resources-related reporting and notice requirements that may apply to their organizations. Please note that this list is for general reference purposes only and is not all-inclusive. Many of the compliance requirements are complex ERISA or other statutory legal filings and responsibilities may vary depending on your company’s plans. We encourage you to consult with your insurance brokers, plan administrators, and/or your ERISA and tax advisors for further guidance.

For the most current information on certain tax-related or benefit-related documents or forms provided by the IRS, or other sources, please check with a tax professional, benefit professional and/or the correlating websites (i.e. irs.gov/LatestForms, etc.).