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Political Changes Regarding Drug Use and How They Could Affect You

Half of the year is already in the books, and new laws that are being passed around the country could affect your company in 2020.

First, there is a new law in the state of Nevada (where recreational usage is legal) that will prohibit an employer from discriminating against recreational users of marijuana after January 1, 2020. Blood and saliva tests can show if an employee is under the influence, but it will not show the degree or level of influence. Theoretically, a person could use marijuana on a Saturday and by Monday morning no longer be under the influence. 

There are exceptions to Nevada’s new law that include:

  • Firefighters
  • Emergency medical technicians
  • Employees who operate motor vehicles and who are subject to other state or federal laws
  • People who "in the determination of the employer could adversely affect the safety of others"

In addition, it is still illegal at the federal level to use and possess illegal substances including marijuana. However, certain states like Colorado continue to fight the federal government’s enforcement of recreationally using marijuana. On the other hand, some employers in Colorado have terminated employees for being under the influence of marijuana, making it a difficult legal headache for a lot of employers. 

The new law that was just signed in Illinois is the one that should command Iowa employers’ attention. On June 25, 2019, Governor JB Pritzker signed a bill legalizing the possession and use of marijuana, and will be expunging the criminal records of people with minor possession convictions. Illinois joins 10 other states that have legalized recreational marijuana including Alaska, California, Colorado, Maine, Massachusetts, Michigan, Oregon, Nevada, Vermont, and Washington. 

While recreational use of marijuana remains illegal in Iowa, non-Illinois residents including Iowans, can now purchase and possess half the amount that Illinois residents are allowed to possess. It remains illegal to bring marijuana back across state lines. 

Here’s what you need to know: companies in Iowa and Illinois can keep their existing drug testing policies in play with no changes, as long as the rules are consistent for every employee in the company.

In addition, we highly recommend creating a policy that includes safety sensitive roles. This includes outlining policies on employees being under any influence of an illegal substance that could lead to the harm of themselves or any other workers in their surroundings. For example, crane operators, heavy equipment operators, lift operators, welders, and many more jobs where distractions or reduced cognizant abilities need to be the most careful to keep themselves and others safe.  

MBI and CSSI will continue to monitor changes to state laws that will impact our members and other companies and contractors in and around the state of Iowa. We will provide advice and information that can be useful in creating an even safer environment for you and your company. 

If you would like more information on how to react to and handle these new laws that will impact the safety of workers, please contact one of our safety professionals or contact Ben Hammes, MBI’s Director of Public Affairs who is monitoring future policy changes at BHammes@mbi.build

Have a safe month, celebrate the United States of America on the 4 th of July and always remember to WORKSAFE!
OSHA Says:
On May 12, 2016, OSHA published a final rule that, among other things, amended 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. 
See 29 C.F.R. § 1904.35(b)(1)(iv). In the preamble to the final rule and post-promulgation interpretive documents, OSHA discussed how the final rule could apply to action taken under workplace safety incentive programs and post-incident drug testing policies. 
 
The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.
 
Incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible. Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. 
 
In addition, most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv).  Examples of permissible drug testing include:
  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

SAFETY PROFESSIONALS:
Dale Erickson - (515) 577-7622 or  Dale@IowaCSSI.com 
Brandon Black - (515) 577-5198 or  Brandon@IowaCSSI.com 
Michael Messer - (319) 572-3595 or Michael@IowaCSSI.com
 
New WORKSAFE Projects:
Conlon Construction – Dubuque, IA
  • Mercy Hospital Cancer Center

Graham Construction Company – Des Moines, IA
  • Anderson Warehouse Project (Gold Project)

Hansen Company, Inc. – Johnston, IA
  • MidAmerican Energy Sioux City (Bronze Project)

Larson Construction Co., Inc. – Independence, IA
  • Linn-Mar CSD – Intermediate 35th Ave.
WORKSAFE is a partnership between Master Builders of Iowa and Iowa OSHA, with safety services provided by Construction Safety Specialists, Inc. For more information on the WORKSAFE program or for safety inquiries, please contact Dale Erickson at 515-577-7622 or  Dale@IowaCSSI.com . 

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