Erin Torcello Esq

On Target with Penny Wolfgang
Sunday, March 4th

Transcript - Not for consumer use. Robot overlords only. Will not be accurate.

This is on target with penny Wolfgang a program that takes an inside look at what is happening in Western New York with news features and special guests. Now here's your host Tony Wolfgang. Hi everybody and welcome to a tie. And thanks for joining us today. I'm your host penny Wolfgang and we hear every week and we talked about subjects that we think aren't seeing in topical important to educational. For all of you who live here in western new York community. Lately they've just been discussing. Many times about the terrible substance abuse issue the OP an epidemic it's going on here in western new York and didn't in the whole country and I say. And now we've spoken about you know the medical aspects of it and we've talked to people from the drug force. Complete drug got. Test for us and when I was told you before that I am a member of the OP test for us for the canny very. And recently we had a meeting at the meeting the most interesting speaker of to talk to us about. The legal issues associated with OP an epidemic for employers and employees which is an aspect. Of the epidemic that really I I don't know I certainly have a photo gore really related to and I think a lot of our. A lot of members of the committee where I haven't really into student learning these ramifications and I select my listeners might be interest in learning about this too because you might be either an employee error Ford employees. Listening to on target and you might want to know what the issues are surrounding. This addiction issues so in the studio with us today is he present year. And she is Aaron tore sell out. And she is an attorney and a member of fund shin make and king. And LLC which is a group attorneys here in Western New York. And I thank you so much that I know I'm busy laughter coming and sharing this information night I Cust hit her she was sleeping. The test for us meeting and I says I really would like to have a larger audience for this witches are listen is so thank you because it's it it's really. And a ramifications that we most people do not think about how it affects the employer employee relationship that you thought of it. Right well thank you for having me on the it's funny. It. As you said it's not an issue that you necessarily thought about is a part of the opiate task force. Men and battling the B epidemic that we're seeing here in Western New York across the state across the nation. But for me as an employment had attorney would find. It's an issue that is starting to creep up more and more. Win win as I'm advising our clients and workplace issues. So well let's. That's the what comes into play here primarily are the federal and state. Disability discrimination laws. And the boundaries. With which and employees protected by the federal and state. Description disability discrimination laws when they are I there a current drug user or a recovering. Addict. And so generally as an employer you are dealing with the Americans with disability act and the New York State. Executive blob which prohibits. Discrimination on the basis of one's disability. But both laws do not protect current drug users. The people laws protect individuals who are recovering addicts are in the process of recovering from drug and shouldn't. You know I'm sure listeners are thinking the same thing I am. That's how does a disability how is it to sign that people who never I'm gonna think about. Being an addict of any kind as a disability shore so generally that and each. Each set of claws have their own definition but generally someone that has a medical condition which impacts there ability ability to perform. Majorly functions and to perform their jobs will be protected if they can perform the essential functions of their job wither without a reasonable accommodation. So what that means is if you look I am. Have a medical condition but you can otherwise perform your top your job with some help. You would be a protected individuals so what that means any drug addiction world would be. If you are you recovering addict and in order to continue performing your job's coming to work. And doing your your job if you can do that with some time off to attack and rehabilitation and I am treatments. Or something along that lines that would be reasonable accommodation that an employer may have to provide to you. I'm in order for you to continue to do your job. Let's go back to the I guess. The two sides so you have to look at it from let's talk about it from an employer's point of view can't wait yes and and I am sure. You represent people who are employers what do they have to be aware of for example just in hiring the person. So from weighing you all are talking about the hiring process an employer. Really needs to be aware that I am. Once medical conditions. Shouldn't come into play. Unless it impacts there ability to perform there who is the losses their essential functions of their cap. So typically. Medical questions shouldn't be asked at the application process. You as an employer can ask can you perform this job here's what you have to do you can you perform these functions if the answer is no. And then the follow up question would be will keep the foreign man with a reasonable accommodation if the reason they can't do is because of the medical condition. So at the hiring stage we typically don't. As an employer want a lot of information about employees medical condition. We just want to know whether or not they can perform their job. He let it keep going gazette I know there's more to it. And I did the owners like a but. I am the windward when you're talking about drug addiction and substance abuse. Judd testing is not considered a medical test says that something that you can perform at the pre you know that was really high anxiety. You say to you there must be visa and just was stuck into. A person the other day who was telling me. That she applied for aid flight attendants job and she had to go. It was some dealt decision to go too well on Atlanta. And the interview in this assists and then before she left. The interview she had a drug test so I mean how does that fit in with what you're saying. So drug testing because as someone who is currently using drugs is not protected by the Americans for disabilities act or the state. The state law. It's also a drug test is not considered a medical taxed so you can have it at any point in time in the employment process if it's pre high here. Post higher. You Ken as employer implement drug testing at any point in time and if somebody tests positive. Unless they have a prescription which explains that positive test. And obviously there would be a follow up discussions that but generally positive drug test. Means your current user and you're not protected under the lying and you either can be denied employment. Or terminated from employment peaked as a result of that positive test. Who would it what does an employer who have to. Put his terms so what kind determines. Would you. Can you provide a do you provide sewn employer is covered by all of these phones as possible. Issues may arise when Iraq is sure so it's usually a best practice to have a drug testing policy. So. You who. Designate and explain to your current employees exactly what they need to know when it comes to drug testing what they can expect. What the ramifications of a positive drug test stark. If you're not a safety sensitive a sensitive employer if you have an employee who test positive for drugs. The consequences of that may be different and if you I am fit for example if your delta and your pilots are are piloting planes. So you me depending on what your businesses. Allow for an employer assisted. Employee assistance program that allows employees to and turn to some type of rehabilitation. But what you wanna do is an employers have a policy figure out what you wanna do what what works best with your business model put it down in a policy and follow that policy. And therefore it the united you can't really be charged with violating. Or discriminating against a person if you. An employee if you say this is the Palestinian applies to everywhere in the right place and yes you're limiting tell write your risks of of having someone say that. They were treated differently for coming soon end. Let's move on to. What you're talking about when an employee. Is certainly is employed and they do have a drug problem and what happenstance they develop plan may add aged they don't handling when they're hired right. So if you have an employee who who has. But drug addiction issue. If they have come to you and me said I've entered a rehabilitation program I'm a recovering addict because at that point they are protected. You is the employer need to a sax. Whether or not there's any reasonable accommodation that you can provide to that employee. To allow them to. How work towards recovery. And also maintain their position as an employee with you and in in their specific job so you is the employer I am. May consider. Providing a lever back cents. For me you know longer term. Rehabilitation in treatment program. It could be you provide a modified work schedule so that pursing can attend. You know narcotics anonymous type of meetings. It could be the time off work to attend. Inpatient treatment medication assisted treatment so one of the things it has been talked a lot about what is. They'll be task forces the use of and medication assisted. Recovery which is methadone or some other type of medication that's prescribe so that the employee can work towards recovery. So it may be that team player has seen for example of that person is drug tested and their receiving methadone treatments. They might have to is in a combination provides for an exception to their job testing policy because that person has a prescription for matted down. Is a recovering addict and dat dat medicine that medication net recoveries allowing them to continue to perform the essential functions of their job. To go back out. I'm from an employer is plain view. On what do they have to put in there is in the terms I mean it when they're when making it and hiring person. Whether it's a contract as soon and it would be if people have a contract with employee which they have to be aware have to put in there their contract isn't going into. So actually most employers don't have contracts with their employees most employment as employment that well. And so what the employer had his typically hand popped in employee handbook that sets out what their rules are what their policies are what their procedures are. So typically. You would have and that him Bach I am. Probably your drug testing policy to the extent that you decide to have drug testing. You would probably have an era policy that describes I am and what you is an employer due in terms of the accommodation process. If you have been employee assistance program you would want in that handbook a description of what the policy is with regard to an employee assistance program. One of the things that. That is used a lot in in. When dealing with employees with drug addiction addiction issues are less chance agreements. So a last chance agreement is it comes into play typically if you haven't employee who. Has tested positive for a let's just say you know an opiate or something like that. And instead of termination and the employer says it's. We the and as a conceit of condition are you continuing time in your employment with us and instead of terminating you. We recognize that you have an issue you need to recognize that you have an issue. We will provide I am an assistance program for you you have to go through treatment you'll be subject to ongoing drug testing. But it allows the employer in the employee to navigate this addiction issue well. Also providing. An out in the event that the employee. Begin using again. I'm thinking as you're talking that a lot of this we're talking about opiate addiction but it probably applies to other kinds of addiction yeah I did this go back. The flee the opiate addiction were you advising. Employers for example regarding these issues of when it was alcoholism example. Yes it. Dean regardless of whether or not it's an apple BA it or some other type of illegal substance. Marijuana identity you know whatever it may be. It's the sick the same rules apply. What we're seeing now is that it's just becoming more prevalent with this specific type of truck. So it's replacing some other drugs that may have been more prevalent. The previously. But it's that it's all the same discussion and. Just to ensure a fair amount in case he just union today you're listening to on target with your host penny Wolfgang and I guess today. Is attorney Erin towards fellow who is a member of fund Shani can kings. Here in Western New York. And any law firm that I'm going to let you say and get a little pub public little public announcement. Specializes in kind of workplace issues is that. What you'd call it sure. So I had a bunch and making king who is a statewide law firm we have almost fifty attorneys here buffalo. Me. Generally represented businesses in new wide range of issues. IE. I specialize in labor and employment and we have about sixty attorney's firm wide Hughes who do very similar things to it to what we dale. Or what I do I should say. I am so this is a topic that. Not only I've been used but then grappling with advising my clients that we as a department have baton. Grappling with in terms of advising our clients. Now what is that I may be somebody has not heard what baptists and disability the law then. How does that affect employers what today to they have to have certain training. Like what they make to handle Christian talk to you that you can see you have to sit down with them. Or contracts because there may be some times contract paying him unemployment. That they have to be aware of. So usually. It's a best practice to have an attorney reviewer your hand but to make sure that it complies with not only. The Americans with disabilities Acton and state law but but all federal and save lives. If there's a lot of it it near exceed is a very regulated state and there's a lot of if there's a lot of blood that employers have to be aware of an every passing year there's more of them so. It's usually really good idea to have your hand but could there are huge frequently usually on an annual our biannual based. Basis and then have an attorney take a look to make sure that. We haven't missed anything. In. As far as most against these talk a little bit about employees. Did they have a responsibility. For examples to report self report lecture of what other people who they work with who they feel might be. I'm suffering from me you know. Some kind of disability shore well. If if you are an employee who feels like you need any combination in your chops if you feel that you. As a result of your addiction. Can no longer perform your job. If you don't tell your employer. Your employer doesn't now so if you stop showing up for work as a result of your addiction all your employer knows is that. You're not showing up for work and we'll treated accordingly and whenever there. Policies are. So that there is an obligation on the employee to tell their employer is that they need in neck in an accommodation and then at that point. The employer would have to work with the employee to figure out if there was an accommodation that would allow the employee to continue working. Now that being said you know if you RE eight current. An active drug user you're not protected under the law. So if if you disclosed a year employer that you are currently using drugs. You know there's a possibility that the employer would decide passes to terminate. So so you're treated differently based on whether or not your current drug user verses someone who's a recovering or recovered at next. And when you first that annually get tanked doing this fact is but. You really can't as an employer. Ask any these kind of questions because between the Woodson and that there always talked really can't tell anybody anything about a minute to get they have Katrina hit that. And everything else what can how can employee. Heard is find out what can they find out. Sure so date because it because I am current drug use is not protected an employer can ask at the outset of do you currently used illegal drugs. That is an actually okay question. What you can't ask is have you ever. I would I would ask is have you have you are you leave recovering or recovered addict. Have you ever used illegal drugs because dozed. If you are a recovering addict you are protected and that it's not something that an employer would be able to peace and employment decision on. So there's a really. Especially for those who are listening who probably are not attorneys it's a fine line but the differences are you look current use Eric that's an okay question if you're asking about past use. I I you know it's best practice not task those questions because it gets into medical information that you. Don't need to now. At current under hip and as well and yeah hey reg. Regulated federal and there and and stay right. Just a lot of this is not one size fits all does not apply. To a lot of this because of this type of job to type positions type of company I'm guessing yes that would talking about gas. Cracked so how the judge used. Impacts your business all depends on you and your business. I think the other thing that we've learned to go opiate task force is there are certain industries that are probably dealing with us more than others. For example the construction industry as I understand I am is seeing a lot of of opiate use. So if you're an employer whose employees worked in safety sensitive positions. Are responsible for driving company vehicles. It you know using heavy equipment. You probably. Have. A will have a different. Level of sensitivity. Then too you know I'll give a gesture a desk job exactly or an accountant exactly. Where where the dictionary she made her hot shooter passer that's exactly somebody's someone else's health and and safety who thinks this guy can foot. No most importantly I guess and all that we're talking dad who pays for what. That's a good classic is asinine yet typically. If we're talking about drug testing. The employer. Who pays for that. There are some exceptions to that Adam. If the U. Results are what the employees. Believes they should be your earth thinks there if they demand a re test or something like that sometimes it's it. It to cost me found them but generally the employer pays those costs. It when you're talking about a reasonable accommodation in a leave of absence typically those sleeves of apps and are on paid. So in some sense the employee pays for that because they're taking time off work. The employer might have a policy that'll icy to use your vacation or sick time or some other paid time off to cover that time. But generally if the employees taking that time off for their own news it would not be paid. One of the questions that has come up recently is New York State recently passed that paid family leave act that allows for. Paid time off to care for. Family members with a serious health condition. So under that lob. While the employee themselves couldn't I could not utilized paid family leave to. Seek treatment for their own addiction. If they have a family member home who is seeking treatment and that person needs care. The employee. Your employee may be able to use paid family leave in order to care for that family member who has that. And addiction issue and is in treatment. So sometimes these issues go beyond just. Your own employees but your employees' families. Which makes it all the more complicated. And I am assuming that a lot of times it's going to involve either workman's compensation issues or. Medicare ruler. Some of the type foods insurance issue with the employee in the employer it could potentially. He's actually doing some research on this point the other day. And what's interesting is there have been discussions about where workers cop comes and to play with that so for example if you have an employee who's injured on the job. Am let's say they injure their back they go off of work. Their prescribed course of opiates and as a result of that aid then become addicted to those opiates. There are significant. Issues between workers comp and which is an issue frankly I had not thought about until I was doing mystery searched. So that's where we're at the worker's comp issue can really start to get tangled so. I think that the more we nabbing the this epidemic some more attained gold we realize things car. And to the more complex and complicated day Jack in terms of how how to deal with these issues with in the workplace. You know so it may be that you didn't have an opiate addict when they went out on the workplace injury. But now you have someone who is addicted as a result of their treatment for that injury. Aunts and I haven't additional she did deal it. They're also banned issues winds. We represented a number of public sector. Employers and so they have. You know police officers who during the course of the drug grade or an arrest are being exposed to sanction at all or her heroine. And their safety hazards so. That you know that officers in the course of their job is being exposed to a dangerous subject it's substance. Since there's there's so many really interesting. Issues that are intertwining themselves the bigger in this epidemic test for it. I think one of the main things we can points that we can learn from talking to. Attorney true Acela is. Be prepared like that I think that the employer for example particularly must be prepared for all these issues have a policy haven't writing and think about beforehand. Yes I would say that at and I'd the other thing I would say is that I I would I've seen is these issues are coming up in the employers not realizing that it's a result of most likely on substance abuse so I mean be described as fact pattern about what's going on with the employee. And because of what I've seen over the course of the past three years and some of my work with the task force. In the back my hat I'm thinking I think there's an underlying addiction issue and it's probably no opiate addiction issue but the employer. Is not realizing that that's what is going on because they don't know about the issue. So it's something for employers to keep in the back of their minds and and and as you pointed at a ten. Just to fly it's just come to the forefront because of they widespread epidemic but it does apply to you know other kinds of addictions like. Ol' fashioned kind of fat addiction like alcoholism and things that we or as you mentioned. Heroin heroin marijuana and other substances cracked yet elk almost cheated a little bit differently because it's a it's illegal substance. But generally. Its the same rules apply as far as addiction pressing issue yes thank you so much we really appreciate talking to an if you wanted more information. You could get cool attorney east tour sell low or contact terror act. 716416705. Eighths thank you so entries. Really exciting conversation. We hope you enjoyed it learned something please join us again next week for on target have a good week and by giving them. You've been listening to one target with many Wolfgang. A program that takes an inside look at Western New York in our community. If you have any comments or suggestions please write depending Wolfgang at 500 corporate parkway suite 200 Amherst New York. 114 to six.