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The Employee Drug Testing Dilemma
Two recent developments have caused even more confusion for employers concerning their legal rights to exclude job applicants based upon positive pre-hire drug screens and to require automatic post-accident drug testing for current employees. This is because OSHA’s revised accident reporting and recording rules issued last year attempting to restrict automatic post-accident testing are on hold and because the Massachusetts Supreme Court has just ruled that a job applicant testing positive cannot be rejected for hire just because he or she uses marijuana for a medical condition. Massachusetts believes the employer needs to engage in an Americans with Disabilities Act type “interactive process” to see if the employee’s marijuana use can be accommodated. Massachusetts employers now must show that the marijuana use is an undue hardship to the business or a safety threat. Wow! How is an employer expected to maintain a safe workplace with these apparent legal restrictions and the widespread abuse of illicit drugs? Here are the answers to the dilemma:
• Marijuana is still a Schedule I federally controlled narcotic and the majority view is that an employer has the right to pre-hire drug screen and reject applicants testing positive for marijuana and other illicit drugs. The Massachusetts case is only controlling in Massachusetts. But, in those states having liberal marijuana laws which contain related antidiscrimination or reasonable accommodation provisions, exclusion on the sole basis of a positive pre-hire test could eventually be considered unlawful. Anticipate more anti-employer decisions similar to the one in Massachusetts.
• Automatic post-accident drug testing is where all employees involved in an accident are tested – or at least those believed to have caused or contributed to it. OSHA’s accident reporting and recording rules contain additional gratuitous commentary stating, among other things, that postaccident testing should be limited to situations in which the drug use is likely to have caused or contributed to the accident – not automatic. But, the actual language of the rules do not prohibit mandatory postaccident drug testing. OSHA thinks employees do not report accidents and injuries in an effort to avoid drug testing. These OSHA rules are being challenged in federal court actions currently. Click here to read more.
ODOT Investigating Flagger Compensation for Personal Vehicle Use
Earlier this week, ODOT informed OCA Staff that they were looking into whether or not Laborers used as flaggers were being properly compensated. ODOT’s Department of Opportunity, Diversity, and Inclusion has spoken with a few contractors regarding their compensation practices for Laborers who are performing flagging on projects while using their personal vehicles and is concerned that there may be Prevailing Wage issues with the current practice. OCA is investigating the issue and will be discussing the matter directly with ODOT. OCA members should contact Mark Potnick of the OCA staff prior to making any agreement with ODOT on this issue.
OCA 97th Annual Convention in Kaua’i
The convention invitations are being printed and should be mailed to you in the very near future. Many people have asked for convention details so they can plan pre and post trips . If you need to know convention details other than the travel dates (February 21 and 28), please contact Rachel Sirca.
OC Magazine Now Online
The July-August edition of OC Magazine is now online and can be viewed by clicking on the following link: http://ohiocontractormagazine.com/OC-jul-aug-2017/index.html?r=72.
Welcome Future Leaders Forum New Members
We would like to welcome our newest members of the OCA Future Leaders Forum. These rising stars will enjoy exposure to the construction industry’s “bigger picture” with visits to ODOT, EPA, OSHA, an engineering consultant, union representative, and legislators. They will learn about insurance and bonding as well as discovering everything OCA has to offer. Welcome aboard!
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Name
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Company
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Kevin Ash
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Gerken Paving, Inc.
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Jason Baden
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Gerken Paving, Inc.
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Brian Friess
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Carron Asphalt Paving, Inc.
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Mario Garcia
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The Ruhlin Co.
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Ben Geletka
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The Beaver Excavating Co.
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Jacqueline Guttman
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The Ruhlin Co.
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Andrea Meyer
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Miller Bros. Const., Inc.
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Thomas Mizer
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The Thrasher Group
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Chad Ratkovich
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The Beaver Excavating Co.
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Michael Seal
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Burgess and Niple, Inc.
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Michael Watson
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The Shelly Company
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