Update: marijuana in the workplace remains daunting for employers


With changes in state and local statutes, court decisions trending toward acceptance and protecting employee rights, and the burgeoning popularity and availability of unregulated CBD, it’s no surprise that many employers and insurers identify marijuana as one of the top challenges in maintaining a safe workplace. Here’s an update:

Legislation affecting workers’ comp

While there has been much activity on the legislative front related to medical marijuana and the workplace, the landscape remains hazy for most employers. 2019 enacted legislation includes: Illinois legalized marijuana for recreational purposes; Nevada prohibits employers from refusing employment to applicants who test positive for marijuana in a preemployment drug test; New Jersey amended its medical marijuana statute to prohibit employers from taking adverse employment actions against employees based solely on their status as a medical marijuana patient; and Rhode Island enacted legislation that employers are not required to pay for medical marijuana costs, but employers may not refuse to “employ or otherwise penalize a person solely for their status as a medical marijuana cardholder,” with certain exceptions. In April, the New York City Council passed a law that prohibits employers from testing applicants for marijuana.

Nonetheless, lawmakers in Hawaii, Kansas, Maine, Maryland and Vermont considered, but did not pass various proposals that would have allowed or required reimbursement for medical marijuana. A bill in Kentucky to clarify that employers and insurers are not required to reimburse an injured worker for marijuana failed.

At the federal level, while decriminalization is viewed as unlikely in the short term, there are pending proposals to decriminalize marijuana (S1552), allow state regulation without federal interference (HR2093), and protect financial institutions and insurance companies that provide services for legitimate cannabis businesses (HR1595).

Shift in court case decisions favors employees

A recent article in the National Law Review, “Courts Are Siding with Employees Who Use Medical Marijuana,” notes that while the first wave of court cases related to marijuana legalization and the workplace tended to side with employers, the tide is now turning. “Recent decisions in federal and state courts indicate that employers need to proceed with caution when they make employment decisions concerning drug tests for cannabis use.”

In Arizona, the court found an employer wrongfully terminated an employee who was a registered user of medical marijuana and failed a drug test following an injury. In Delaware, a court held that a medical marijuana user may proceed with a lawsuit against his former employer after a positive post-accident drug test result for marijuana led to his termination. In Connecticut, a federal judge ruled that the employer violated an anti-discrimination provision of Connecticut’s medical marijuana law when it withdrew the job offer to a “qualified patient” using medical marijuana.

In New Jersey, an appeals court ruled that medical marijuana use is covered under the state’s ban on disability-based employment discrimination. The case, Wild v. Carriage Funeral Holdings, Inc, is expected to be heard by the state supreme court. In Oklahoma, the court of appeals concluded that the presence of THC in an employee’s blood after a workplace accident does not automatically mean that the employee was intoxicated and could be denied workers’ compensation benefits. The case, Rose v. Berry Plastics Corp, is on appeal to the state supreme court.

Employers and insurers were victorious in Florida when a workers’ compensation judge (JCC) found that Florida’s medical marijuana statute prohibits reimbursement under workers’ compensation, and that requiring employers and insurers to pay for a worker’s medical marijuana would violate the federal Controlled Substances Act. The JCC also determined that employers and insurers should not be required to pay for a worker’s medical evaluation to obtain medical marijuana because the cost of the evaluation would be part and parcel of the cost of obtaining marijuana. The case, however, has been appealed to Florida’s First District Court of Appeal.

CBD is everywhere and unregulated

Late last year, the Agricultural Improvement Act removed hemp-derived CBD with less than 0.3% Tetrahydrocannabinol (THC), the principal cannabinoid in cannabis, from the list of Schedule I drugs. The popularity of CBD, cannabinol-based products, skyrocketed with an aggressive marketing campaign, promoting its value as an alternative to pain meds with none of the psychoactive effects associated with cannabis. While states and local governments are beginning to make their own regulations for the hemp industry, the void in oversight has given rise to shady companies looking to capitalize on the burgeoning CBD market.

Available online, in supermarkets, coffee shops, convenience stores, retail establishments, and pet stores, there is so much variability in the potency and purity of CBD products, it is raising havoc in the positive testing for THC. Packaging for CBD oil may claim to be THC-free or below traceable limits, but they can contain enough to be detected during a drug screen.

While the DOT has made it clear a positive test for THC as a result of CBD use will not be excused, employers are struggling with how to address situations where an employee defends a positive drug test by claiming use of CBD.

More research on medicinal benefits and testing, but few definitive results

There continue to be many studies with varying results and heated debate about the medicinal benefits of marijuana. Addressing the often-discussed association between medical marijuana and lower levels of opioid overdose deaths, a study by the Proceedings of the National Academy of Sciences found it unlikely that medical cannabis – used by about 2.5% of the U.S. population – has had a large offsetting effect on opioid overdose mortality.

While more testing options are being researched, tests can only detect tetrahydrocannabinol components, which means that the individual used it anywhere for a day or two to several weeks prior to testing. It does not make a determination of impairment. While some states have adopted laws about levels for driving under the influence, there is still no agreement about levels of impairment.

All of this is compounded by the fact that there are few state or federal guidelines concerning maximum, minimum, or even standardized dosages for treatment. There are only three prescription drugs derived from cannabinoids that are approved by the FDA.

What employers can do

Employers need in be diligent in their focus on mitigating cannabis-related risks in their workplaces:

  1. Stay abreast of state regulations and recent court cases.
  2. Continue to update drug and fitness for duty policies with legal counsel. Determine how CBD use will be treated.
  3. Train supervisors to detect signs of possible impairment and what to do when they suspect impairment.
  4. Discuss with your testing provider how CBD is monitored.
  5. Educate employees that almost all CBD products are not regulated by the FDA and to adopt a “buyer beware” approach. Consumers purchasing online or at unlicensed retailers are taking a risk of products that contain THC and additives such as pesticides or chemicals, that can result in a positive drug test.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Depression and suicide: a growing workplace worry

It seems daily there are stories about the growing suicide rate and the national decline in health and mental well-being, particularly among young people. There’s no escaping the issue in the workplace; it mirrors that of the general population. While workplace suicide numbers are small, they are rising and are traumatic for everyone in the workplace.

According to Happify, a mental health app, workers’ mental well-being sank to a five-year low in 2018. The analysis of a half million people shows a correlation between age and depression, particularly among employees between the ages of 18-24 who experienced a rise of 39% in depressive symptoms over the past five years. Although the increase was lower (24%), Millennials, ages 25-34, also are a high-risk group. In contrast, older employees between the ages of 55-64 showed improvements in their mental health.

While this analysis did not examine whether the causes were internal or external to their employment, it notes that earlier research found younger adults tend to be more stressed and worried about job-related matters than older workers. It’s a transitional time, figuring out who they are and what they want to do with their lives, which can be challenging.

Further, CDC research identified white, middle-aged, and primarily rural as vulnerable populations. The report also identifies construction workers as high risk – more male construction workers take their lives than any other industry. Some attribute this to a high concentration of “alpha” males who are supposed to be particularly tough but face challenges of a high-pressure environment, a higher prevalence of alcohol and substance abuse, separation from families, and long stretches without work. In response to this problem, the industry has created the Construction Industry Alliance for Suicide Prevention.

Reducing the stigma of mental health is the number one thing companies can do. While it is a devastating moral and social issue, it also has serious economic implications for employers. Some of the signs to watch out for are increased tardiness and absenteeism, decreased productivity and self-confidence, inattention to personal hygiene, isolation from co-workers, agitation, and increased conflict among co-workers.

Educating employees to increase the awareness of the warning signs and providing resources to get help are key. A starting point is simply paying attention to people at work and asking how someone is doing. A new OSHA webpage also offers confidential resources to help identify the signs and how to get help.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Six studies: what does and doesn’t work to improve claims outcomes

Recently, there has been a plethora of studies related to claim outcomes in workers’ comp and group health, several with surprising conclusions. Here are six of them:

Workers’ Compensation Medical Prices and Outcomes of Injured Workers – Workers Compensation Research Institute (WCRI)

Study: This study addresses a long-standing policy debate about the role of workers’ compensation prices in outcomes of injured workers; specifically, what happens to outcomes of injured workers when prices increase or decrease. Survey data covered workers’ experiences across 14 states, and claims data provided information from across 30 states. It focused on the pricing of common office visits, which affect most injured workers, rather than specialty medical treatment prices that wouldn’t apply to all injured workers.

When examining the link between workers’ compensation prices and outcomes, the study focused on five specific outcomes:

  • Access to care
  • Nature of medical care
  • Change in physical health and functioning
  • Return to work
  • Temporary disability duration

Findings: There is a strong link between workers’ compensation prices and the first two outcomes – access to care and nature of medical care. For example, when workers’ compensation prices were relatively higher, workers were significantly more likely to receive physical therapy within the first six weeks of being injured and went to more office visits for evaluation and management services.

However, this did not have much of an impact on the last three outcomes. “While prices are related to measures of access to medical care and the nature of medical care provided, changes in these measures when prices increase are not material enough to result in improved recovery and faster return to work,” according to the report.

Takeaway: Factors other than price are important in shaping different outcomes. “Future studies may need to focus on other system features that may explain large differences in outcomes across states.”


Health Insurance and Outcomes of Injured Workers – WCRI

Study: The study provides new empirical evidence about workers with health insurance and what that means for workers after a work-related injury. Researchers surveyed injured workers in 15 states.

Findings: Injured workers with health benefits showed a 2.5% higher return-to-work and returned to substantial work on average one week faster than workers without health insurance. They received evaluation and management services more quickly, had higher rates of satisfaction with primary providers, and had lower rates of hiring an attorney for comp claims. However, there was little difference in the likelihood of workers reporting problems obtaining medical services, or in the kind of care received.

Takeaway: Workers’ comp historically was in one silo, with health programs in another. If you are still organized in traditional silos, it’s time to change. Smart companies have adopted a holistic approach to employee health to drive down costs, improve productivity, boost the bottom line, and help employees enjoy better health.


Effectiveness of a no-cost-to-workers, slip-resistant footwear program for reducing slipping-related injuries in food service workers: a cluster randomized trial – Scandinavian Journal of Work, Environment & Health

Study: This study evaluated the effectiveness of a no-cost-to-workers, slip-resistant footwear (SRF) program in preventing workers’ compensation injury claims caused by slipping on wet or greasy floors.Laboratory tests have shown that slip-resistant shoes designed with a special tread helped prevent slipping, but studies in actual workplaces were lacking. The study population was a dynamic cohort of food service workers from 226 school districts’ kindergarten through 12th-grade food service operations.

Findings: Food services operations where workers received free highly slip-resistant shoes showed a large reduction in workers’ compensation claims for slip injuries compared to food service operations where workers did not receive the shoes. School districts filed 67% fewer claims for slip injuries after being provided the slip-resistant shoes, compared to no reduction in claims for slip injuries at the school districts that did not receive the shoes.

Takeaway: Slips, trips, and falls are the third-leading cause of U.S. non-fatal work-related injuries involving days away from work across all industries. Almost 80% of these injuries are on the same level, and these injuries are estimated to cost nearly $13 billion in direct workers’ compensation-related costs annually. These results show that providing highly rated slip-resistant shoes can help reduce claims for slip injuries.


Opioids, Pain and Absence: The Productivity Implications of Substance Abuse Among US Workers – Integrated Benefits Institute

Study: The Oakland, CA-based research organization surveyed by phone 84,579 American workers over 18 years old between 2015 and 2017, with 74% of them reporting to be working full-time. The goal of the study was to examine productivity and days missed from work due to prescription drug use among workers.

Findings:

  • 33% of workers reported taking prescription painkillers.
  • Less than 1% reported any heroin use.
  • Rates of alcohol abuse and dependence exceed the problematic use of pain relievers and other prescription medications at 7% of the workforce interviewed.
  • Use of cocaine or methamphetamine was relatively uncommon, at less than 3% and 1%, respectively.
  • Excess work absences associated with pain relievers were greater than excess absences associated with any other substance. On average, non-problematic use of pain relievers was associated with 0.8 days of excess absences per month compared with non-users. The problematic use of pain relievers was associated with 2.0 absences, or 1.2 excess days per month compared with non-users.
  • Assuming a 20-day work month, the use of pain relievers was associated with a loss of about 1.3% of the monthly labor capacity of 1,000 workers. The non-problematic use of pain relievers accounted for 96% of those losses.

Takeaway: Managing pain is a major challenge in workers’ comp. The numbers are alarmingly high, suggesting a continued problem of over-prescribing and a workforce grappling with pain issues. Although a small percentage reported abuse of pain relievers or dependence, experts postulate that “problematic behaviors” such as addiction and dependence are likely to follow. Employers should be proactive in educating employees on the risk factors and nonpharmacologic approaches to pain and work with occupational medicine providers to help their employees prevent pain management from becoming abuse and improve productivity.


Association of Opioid, Anti-depressant, and Benzodiazepines with Workers’ Compensation Cost: A Cohort Study – Accident Fund (AF) Group

Study: This analysis evaluated the impact of benzodiazepines and antidepressants in combination with opioids on workers’ compensation claim cost and closure rates.

Findings: Concurrent treatment of chronic pain, depression, and/or anxiety and occupational injuries is associated with large increases in total workers’ compensation claim cost and delayed return to work. The slowest claim closure rate occurred among workers with prescriptions for all three types of medications (58.3%), followed by claims with both opioid and antidepressant (64.8%) prescriptions. The group without any medications had the highest closure rate (91.8%), followed by the group with only opioid (89.1%) prescriptions.

Even when controlling for age, chronic pain, medical complexity, and claim development (years), antidepressant claims, to a greater degree, were more likely to remain open at the end of the three-year study period.

Takeaway: The presence of anti-depressant medications on a claim is an indicator of a potentially costly claim. Early intervention is needed to minimize the impact of behavioral issues and psychotropic medications on workers’ compensation claim outcomes.


Integrated Physical Medicine at Employer-Sponsored Health Clinics Improves Quality of Care at Reduced Cost – Center for Primary Care and Outcomes Research, Stanford University, Crossover Health

 

Study: The aim of the study was to evaluate clinical and economic outcomes associated with integrating physical medicine in employer-sponsored clinics.

Findings: Integrating physical medicine in employer-sponsored clinics decreased wait times to access these services to 7 days (2 to 4x faster than in the community). Patients receiving care in employer-sponsored clinics experienced marked improvements in fear of pain avoidance behaviors (a strong predictor of disability) and functional status in eight fewer visits than in the community resulting in $472 to $630 savings/patient episode. Noncancer patients received 1/10th the opioid prescriptions in employer-sponsored clinics compared with the community (2.8% vs 20%). Patients were highly likely to recommend integrated employer-sponsored care (Net Promoter Score = 84.7).

Takeaway: Musculoskeletal complaints represent the second largest cause of short-term or temporary work disability, and employers bear a disproportionate share of these costs, including approximately 290 million lost workdays annually. While the study focuses on how larger employers can strengthen onsite or near-site clinics, it notes employers should consider policies to reduce barriers to accessing physical medicine services such as direct patient access, sufficient availability of appointments, and benefit designs that incentivize use of physical medicine services before elective imaging and specialist visits.

A strategy of early access to physical therapy has been associated with a 36% improvement in patient outcomes, 52% less imaging, 56% fewer spinal injections, 59% fewer lumbar surgeries, and 62% less opioid use.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Five mistakes employers make when using data to develop risk control programs

Data analytics is a key driver in the development of business strategy and workers’ comp claims are a goldmine of information. Yet, when not used properly, the results can fall far short of expectations. Here are five common mistakes:

  1. Relying solely on the insurance company Some employers rely solely on the insurance company to analyze their claims and make recommendations to prevent injuries and control costs. In recent years, insurance companies have beefed up their analytics and embraced predictive analytics to manage claims. They use information from years of past claims to build models that will predict what may happen next in a particular claim. Indeed, such information benefits employers.Insurance companies also are a great resource for claims information in your industry. They can provide helpful guidance for how you stack up versus your peers.But it’s important to have realistic expectations and remember that the insurance company’s goal is to leverage data to improve their profits. This can lead to aggregate information or a cookie-cutter approach that falls short of your needs.
  2. Data such as injured-worker demographics, department, type and severity of injury, frequency, timelines and money set aside for reserves of claims, and if the claim ends up in litigation can all help employers guide future outcomes. Smart employers regularly review their loss run reports from the insurance company that includes this information, not only to ensure it is correct (errors mean increased premiums) but also to identify trends that lead to actionable insights. What are the main drivers of incidents in the organization and what can we do to change are the key questions to ask in analyzing data.
  3. Observing metrics at face value Each year, Risk & Insurance identifies “All Stars” who stand out from their peers by overcoming challenges through exceptional problem-solving, creativity, perseverance, and/or passion. One of the 2018 All-Stars was Kevin Farthing, environmental health and safety manager for Florida-based Sparton Electronics, a 600-employee company manufacturing sonobuoys for the navies of the world.The company faced a high number of musculoskeletal injuries and annual workers’ comp claim costs exceeding $500,000. Multiple modifications to the production processes and attempts to control ergonomic risk factors had not solved the problem.Digging through the data, he discovered that 40 percent of the musculoskeletal injuries were occurring during the first three years of employment. The company was hiring workers who were not capable of performing the physical demands of the job.
  4. He then took the logical next step and worked with a company to design specific post-offer, pre-employment tests to make sure candidates were up to the physical challenges. But he did not stop there.
  5. The failure rate on the test was high – 50%. Rather than lowering the demands of the tests, he identified which tests individuals were failing most and modified the actual work tasks. For example, they no longer require employees to manually move certain types of heavy loads. Coupled with other changes, a two-year investment of $174,000 has yielded an expected savings of more than $950,000.
  6. Not being objective or hanging on to old beliefs Commitment to the status quo or leadership thinking may limit taking action on data. Some rationalize that the incident rate is acceptable and changes will mean lower production. Or a belief that “injuries are part of the job” or simple complacency. Buy-in from management can take effort and tenacity.For many years, it was believed (and documented) that inexperience and inadequate onboarding put younger workers at increased risk and they were more likely to suffer a workplace injury. On the other hand, older workers would experience fewer injuries but would take longer to recover and have more costly claims. Recent research from the National Council on Compensation Insurance (NCCI) dispels this conventional wisdom and finds that younger workers are getting injured less often than their older peers.The workforce is changing and processes are becoming more automated. While the number of workers under 55 has remained more or less stable, the number of workers who are 55 or older has doubled since 2000. Women make up more than half of labor force growth. Relying on old data or beliefs leads to ineffective and costly programs.
  7. Year-over-year analysis will show how claims are changing. This will tell you if initiatives are working or if a new direction is warranted.
  8. Failing to segment An important finding of the NCCI research was that key injury risks vary by age group. Younger workers are prone to injuries from contact with objects or equipment, while overexertion injuries are most vexing for employees in the middle of the age spectrum. Meanwhile, slips, trips and falls disproportionately affect those over 55.There’s clear value for employers to mine their own claim data correlating type of injury with age and gender of workers. When younger male workers are experiencing a higher incidence of injuries from contact with objects or equipment, a change to interactive and technology-based training, rather than a dry manual, could be an effective way to improve safety.It’s not just age subsets that can help employers to be tactical in the way they manage their safety budget. Comparing similar departments can identify why one department may be functioning at a higher level than the others and then apply the best practices to other departments.
  9. Not looking beyond the data Although there are many sophisticated data tools, programs cannot rely on data alone. There is a myriad of subjective factors that affect incident rates. Production pressure, management safety practices, limiting mind-sets, and fear of automation are just a few.These factors cannot be quantified with statistics. Instead, organizations need to have subjective methods to review these factors that represent the “heart” of their workers’ comp program.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com