Occuscreen
Updates on Marijuana and FCRA Compliant Disclosure Forms
Summer 2015
Summer is almost here, but from what I hear from businesses nationwide, things are not slowing down! "Busy, busy, busy" seems to be the most common phrase around, and employers are most definitely hiring!
We have some information for you to keep your hiring practices compliant by using a Disclosure and Authorization Form with all the right ingredients ( and none of the wrong) , as well as some updates on m arijuana legalization, and suggestions for employers in l egalized m arijuana states.
  
Questions on this information or any screening topics? Just let us know!
  

Email: info@occuscreen.com 

888-833-5304    www.occuscreen.com

 

Background Checks

 

Disclosure Forms - Some Do's and Don'ts to Protect Your Applicants and Screening Process 

Recently, there has been some litigation on Disclosure and Authorization forms, such as the suit against Michael's. Michael's was pulled in the forefront of a class action lawsuit for not disclosing to their applicants that a background check would be performed. The FCRA  requires "that before procuring a consumer report for employment purposes a prospective employer must disclose that the employer may procure a consumer report for employment purposes in a document that 'consists solely of the disclosure.'" By not providing a separate disclosure authorization form, this class action lawsuit alleged that Michael's did not fully comply with the FCRA.

  

Clearly, a separate Disclosure and Authorization Form must be signed by each applicant/employee prior to any background screening, but along with that, forms have additional  requirements which are legally required.

  

Here are some Do's and Don'ts to make sure your forms are compliant with both the FCRA and state regulations:

 

DO:

  • Make sure your Disclosure form is a separate document from your hiring application
  • Include the name and contact information of your current screening vendor on the form (In case of a dispute the applicant needs to know who to contact)
  • Include the definition of a consumer report: "credit history, character, general reputation, personal characteristics, mode of living."
  • List the specific types of information that will be collected: Motor Vehicle Reports, Credit Reports, etc.
  • Include specific state regulations when required (specifically in CA, MN, NY, OK if located in those states)

DO NOT:

  • Include a release of liability
  • Include any extraneous information
  • Use tiny or illegible print
  • Ask about prior criminal history or convictions

Of course, we recommend always having your legal counsel make sure the form you use is compliant with your state regulations and the FCRA.

  
Medicine bottle with marijuana

 

Marijuana Legalized Coast to Coast... Sort of...

by Bill Current

 

A majority of Floridians (57%) voted on November 4 in favor of legalizing marijuana for medicinal purposes but the initiative failed to reach the minimum 60% required to change the state's constitution to permit medical marijuana. Other that, November 4 was a stellar day for the pro marijuana movement with two states, Alaska and Oregon, plus the District of Columbia voting to legalize pot for recreational use ala Colorado and Washington. (Guam also voted to legalize marijuana for medicinal use.)


Congress can overturn D.C.'s new law, and perhaps our elected officials will, but marijuana is now legal in two more states.  What does this mean for employers? Do these new laws contain any language to protect workplaces from the ill effects of workers who are under the influence? Remember, while Colorado's recreational marijuana bill did contain a workplace provision, Washington's bill did not and still doesn't now that it's a law.


In Oregon, 54 percent of voters supported the marijuana bill, which is now scheduled to take effect in July 2015. In Alaska, 52 percent voted in favor of legalizing marijuana. A state commission will have nine months to develop regulations once the vote is finalized.


The good news is both the Alaska and Oregon initiatives include workplace provisions. As you will note in the following language, taken verbatim from the bills that were passed, lawmakers left many questions unanswered such as: Can employers test for marijuana? And what happens when someone tests positive? 


Alaska - Ballot Measure 2 - Recreational Marijuana


Amends Alaska Statutes Title 17 by adding a new chapter - Chapter 38 "The Regulation of Marijuana."


Sec. 17.38.120. Employers, driving, minors and control of property.


 "(a) Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."


Oregon - Measure 91 - Recreational Marijuana


Creates a new statute.  SECTION 4. Limitations. Sections 3 to 70 states that the Act may not be construed:


"(1) To amend or affect in any way any state or federal law pertaining to employment matters..."


Washington DC - Initiative 71 - Recreational marijuana


Amends Section 401 of the Uniform Controlled Substances Act of 1981. It includes this workplace-related language:


"(4) Nothing in this subsection shall be construed to require any district government agency or office, or any employer, to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of any such agency, office or employer to establish and enforce policies restricting the use of marijuana by employees."

 

Click here to learn more about the On-Line Ultimate Guide to State Drug Testing Laws where you can access comprehensive state-by-state information on drug testing, including marijuana.

 

Marijuana Leaf Marijuana in the Workplace: 5 Steps for Employers to Take After Legalization of Marijuana

by Chys Martin, Davis Wright Tremaine


 

On Nov. 4, 2014, Oregon voted to decriminalize, regulate, and tax the production, delivery, and possession of marijuana. Oregon joins Alaska, Colorado, Washington, and Washington, D.C. in legalizing recreational marijuana use. For employers, the main thing to remember is that the recently passed initiative does not "amend or affect in any way any state or federal law pertaining to employment matters." Ballot Measure 91, ? 4(1) (2014). Thus employers can still prohibit possession, use of or impairment by marijuana, just like most employers treat alcohol. Marijuana is still an illegal drug under federal law. The state law change will have no bearing on the U.S. Department of Transportation's regulated drug testing program. Employers can still test for marijuana use by employees and discipline or terminate for violation of drug and alcohol policies just as in the past. Furthermore, the new law does not go into effect until next July, and employers can remind their workers of that important detail.

  

Nevertheless, employers should revisit their personnel policies and drug testing programs, revise them if needed, and communicate with their employees about the impact of this initiative on their workplace. Here are Five Steps that employers should take to address this issue:

 

1.  Step One - Determine strategically whether you wish to treat marijuana like alcohol in the workplace. If so, then you'll need drug and alcohol prohibition policies and perhaps wish to implement a testing program. It is expected that marijuana use will increase in Oregon and thus many employers who weren't testing may decide it is in their best interests to test applicants or employees. Employers will need to determine how they will treat proven use, possession or impairment by marijuana.

2. Step Two - Develop policies prohibiting drug use if they don't exist or update existing policies. Carefully define what constitutes drug use under your policies as it must be clear that the prohibitions extend to illegal drugs under both state and federal law. Another option is to list which specific drugs or categories are included. Be sure to prohibit impairment by, not just being "under the influence of" drugs and alcohol and define those terms. Employers can prohibit the use or impairment by legal prescription drugs under certain circumstances if they pose an unreasonable risk of harm to the employee or others.

3. Step Three - If you have not implemented a drug testing program, you may wish to do so. This requires a clear policy and procedures and selection of a competent testing agency. Some agencies have sample policies and procedures available but will always encourage review by a lawyer before use. Whether it results from on-duty or off-duty use, a positive test for marijuana can support disciplinary action (including termination of employment) pursuant to well-written policies. Furthermore, as marijuana remains illegal under federal law, federal contractors and grantees need to continue to treat marijuana as an illegal drug under their Drug Free Workplace policies. Drug use is still not protected under federal leave laws or disability laws.

4. Step Four - Any change in policy or new policy should be provided to employees and a signature obtained confirming receipt either in hard copy or electronically. It is recommended that a cover memo accompany such new policies explaining the change and the rationale. This would be a good time to remind employees that the law does not go into effect until next July and therefore marijuana use is still a crime in Oregon and your existing policies still apply.

5. Step Five - Decide how you will treat breach of your policies or a confirmed positive test. Some employers have a zero tolerance for alcohol or drug possession, use or impairment and termination results immediately. Others treat alcohol and drugs differently, perhaps allowing time off for treatment of alcohol abuse but not for drug use. Some employers offer a last chance for violation of drug and alcohol policies depending on the circumstances. Others require participation in a treatment program before reinstatement to work. Whatever course you choose, be sure to treat similarly situated employees in a similar manner to avoid claims of discrimination.

  

Of course, unresolved issues remain. New legal arguments based upon discrimination, privacy, and public policy theories continue to develop as workers look for ways to challenge terminations and hiring decisions. To date, employees have generally been unsuccessful, but theories continue to evolve. Employers should educate employees that the law does not change anything with respect to prohibitions on impairment, possession or use at work.

 

 

For more information on this topic, please contact Chrys Martin at Davis Wright Tremaine;

chrysmartin@dwt.com 

503-778-5357                                                 

 

If you have any questions regarding drug testing options, please contact Pamela Mack at pamelam@occuscreen.com.

 

 

 
 
 
Detection Windows Influence Which Screening Option You Choose
 
When you have made the decision about your company policy on marijuana usage, whether to use a no tolerance policy or to treat marijuana similar to alcohol, make sure you choose a screening process that will help you comply with your policy.
 
Urine Testing:  Positive test results from 2-5 hours after ingestion, to 1-3 days for occasional use, and up to 30 days for chronic users. Test results show prior usage. 
 
Oral Fluid Testing: (refers to lab-analyzed results, not instant products) Positive test result from within minutes of ingestion, to up to 48 hours.  Mimics a blood test. Substance must be currently in the system to test positive. Test results show current usage, "under the influence", but not impairment.
 
Hair Follicle Testing: Positive test results from 5-7 days after use, to up to 90 days. Test results show prior usage.
 
Please contact us for questions about these processes, and other options by emailing info@occuscreen.com or calling 888-833-5304.
 

Please let us know if there are questions, areas of interest you would like us to address in future newsletters, or if you are interested in partnering with Occuscreen for employment screening.

Sincerely,



Pamela Mack
Occuscreen

888-833-5304

pamelam@occuscreen.com

In This Issue
Disclousure Form Do's and Don'ts
Marijuana Legalized Coast to Coast
5 Steps for Employers
Detection Windows for Marijuana

RECENT HEADLINE

Regardless of State Laws, the Use of Marijuana Remains Unlawful Under Federal Law

 

By Kyle Abraham,

Barran Liebman

               

On June 15, 2015, the Colorado Supreme Court issued its much-anticipated decision in Coats v. Dish Network, LLC.  This case is an important reminder that the use of marijuana remains unlawful under federal law, regardless of what a state law may say.  

 

In the Coats case, an employee tested positive for tetrahydrocannabinol ("THC") in violation of the employer's policy.  The employee admitted he used marijuana, at home during nonworking hours, in accordance with Colorado's medical marijuana laws.  Nevertheless, the employer terminated the employee for violating company policy.  The employee challenged his termination and claimed his use of marijuana was "lawful" under Colorado law.   Specifically, the employee relied on a Colorado statute which generally prohibits an employer from discharging an employee based on the employee's engagement in lawful activities off the employer's premises during nonworking hours.  While there is no similar statue under Oregon or Washington law, the case is an important indicator of judicial attitudes about the use of marijuana in accordance with state law.

 

The issue before the Colorado Supreme Court was to determine whether the off-duty use of marijuana was a "lawful" activity.  The court determined the employee's use of marijuana was not a violation of state law; however, the court held that marijuana use remains unlawful under federal law.  Therefore, the use of marijuana is not a lawful activity under Colorado state law. 

 

For more information contact Kyle Abraham:


 

kabraham@barran.com

(503) 276-2132

 

  
  

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