Pizza Today - March 2016 - 68

employee's condition contributed to the
accident, Wulffson explains. However,
says Denver-based Danielle Urban,
attorney and partner with Fisher &
Phillips, a labor and employment law
firm headquartered in Atlanta, other
states allow post-accident testing after
any accident.
Random drug testing can be a minefield. "In most states you can random
drug test, but to avoid legal issues,
employers can test a certain percent
of employees, all employees, or limit
the testing to specific positions," says
Urban. Employers cannot pick on just
certain employees; all those qualifying
for random screening - like delivery
drivers, for example - must at some
point be screened. The best strategy
for avoiding charges of discrimination/
harassment? Have an outside agency do
the selection, she says.
However, Wulffson says, although
federal law allows random testing
everywhere for certain occupations -
think airline pilots or interstate truck
drivers - many states don't allow it,
except for employees in safety-sensitive
positions (according to Urban, many
states haven't defined "safety sensitive,"
so this can be problematic).
"But in some states, the requirements
are so high they're easy to violate," Wulffson says. "My thought is no employer
should do random testing without legal
counsel."
Drug testing based on reasonable
suspicion that an employee is under
the influence works everywhere, says
Wulffson. Still, employers must take
care. A designated employee should be
trained to make the assessment - and
be able to do so without violating medical privacy laws - that someone needs
to be tested, he says. This should be the
same person every time (per shift).
Employers should establish a relationship with a qualified testing facility
(some states require using state-licensed
labs, says Oswald). The employee should
be driven there by another employee to
ensure the person actually goes. Plus,
someone thought to be under the influ6 8 / P I Z Z AT O D AY. C O M / M A R C H 2 0 1 6

ence shouldn't be driving, says Wulffson.
Medical marijuana has thrown a
curve into drug-testing, says Urban.

"Some states don't protect the right to
use medical marijuana, so employers are
free to have a zero-tolerance policy," she
says. "If post-accident or random drug
testing reveals the presence of marijuana
- and the person must have a medicalmarijuana card - he can still be fired,
even if he had smoked days earlier."
However, in other states employers
can't make testing positive for medical
marijuana grounds for firing, unless the
employee is in a safety-sensitive position, or shows up impaired, or smokes/
consumes it while on the job, Urban
says, adding that she knows of no state
protecting recreational marijuana use.
(Testing positive for medical marijuana
in these states also wouldn't necessarily
be grounds for rescinding a job offer,
unless for safety-sensitive positions.)
Wulffson advises all employers
to have a policy defining medical
marijuana as an illegal drug - "It's a

violation of federal law everywhere," he
explains - explicitly stating employees
cannot possess it or use it on the job, or
arrive to work under the influence and
that if they do so they'll be fired. This
policy should additionally state that the
improper use of prescription drugs or
OTC medications won't be tolerated.
Oswald says employers should always
seek counsel before implementing
any screening program to ensure it's
reasonable and legal. The plan published
by the Substance Abuse and Mental
Health Services Administration (SAMHSA) is one many employers follow, he
says.
Oswald also recommends:
* Putting the program in writing.
Explain it clearly. Have employees sign
they understand it. Also post in common areas.
* Training managers to implement
the program appropriately. Ensure
they're not using screening as a way to
harass/punish employees (testing on

reasonable suspicion is easily abused
by managers, he cautions).
Wulffson believes it's in employers'
best interests to have a drug-testing
policy in place. "Without this, you
can't test at all," he explains. "And it
needs to be zero tolerance. If an
employee is under the influence at
work, you need to fire him." n
PAMELA MILLS-SENN is a freelancer
specializing in writing on topics of
interest to all manner of businesses. She is
based in Long Beach, California.

Creating
Drug-Free
Environments
Dr. Indra Cidambi, medical
director/founder of the Center for
Network Therapy, a Middlesex, New
Jersey, outpatient drug program,
says the food service industry has
among the highest rate of illicit drug
use. A factor is the stressful nature
of the job, which can encourage
self-medicating/drug abuse, says
Cidambi. Restaurant operators/managers can lessen the likelihood of this
happening by:
* Being mindful of what employees are facing; offer support.
* Cross-training employees and
rotating jobs, preventing burnout and
boredom.
* Staffing appropriately; bringing
on more employees during rushes,
reducing their numbers during downtime.
What not to do? "Don't turn a
blind eye to a problem or condone the
behavior," Cidambi says. "You cannot be a part of it. And don't worry
about the consequences of forcefully
addressing the problem." By failing
to do so, restaurant operators are
potentially placing other employees,
customers and even their business at
risk, she says.
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