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Drug Testing and Substance Abuse Management Update for California Employers: Compliant and Effective Strategies for Employers Amidst Marijuana Legalization and the Opioid Addiction Crisis

Drug Testing and Substance Abuse Management Update for California Employers

Product Code: DT17CA1

1st Attendee $449.00*
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This event is approved for HR and Safety Credit hours! See below for details. This program is also a California-specific continuing education activity for PHR-CA and SPHR-CA recertification.

Drug Testing and Substance Abuse Management Update for California Employers: Compliant and Effective Strategies for Employers Amidst Marijuana Legalization and the Opioid Addiction Crisis

On-Site Seminar:
Los Angeles | Tuesday, December 5, 2017

EVENT SNAPSHOT: In just one day, gain practical information on and strategies to address drug testing and substance abuse in the workplace.

Recent state regulatory developments regarding medical and recreational marijuana have created a complex web of compliance concerns for employers as they try to navigate drug testing policymaking and substance abuse management in the workplace. A sweeping opioid abuse epidemic further compounds these challenges, requiring that employers maintain a delicate balance between business objectives, employee rights, and ADA requirements.

It's in an employer's best interest to be proactive on this issue. According to the National Safety Council, the estimated yearly economic impact of substance use disorders exceeds $442 billion. Workplaces assume a great deal of these costs in the form of absenteeism, increased healthcare expenses and lost productivity. On the other end, each employee who recovers from a substance abuse disorder saves a company more than $3,200 a year.

This one-day comprehensive seminar will connect you with knowledgeable attorneys to provide practical information and strategies to address these sensitive and increasingly prevalent workplace issues.

You’ll learn:

  • Your legal rights and limitations regarding drug testing (and will receive a sample policy to customize for your organization)
  • Post-accident drug testing best practices and strategies to comply with OSHA’s ‘Reasonable’ Reporting and Anti-Retaliation Provisions
  • How to address emerging compliance obligations regarding medical and recreational marijuana use
  • Steps you can take to manage the effects of the opioid epidemic on your workforce and minimize your legal liabilities
  • Ways that you can leverage employee assistance plans and other benefit programs to combat addiction and aid in timely recovery


Your California Master Class Faculty

Danielle MooreDanielle Moore, Esq.
Fisher Phillips LLP 

Danielle Moore, a partner with Fisher Phillips, represents and counsels employers in all aspects of labor and employment law, including preparation of employment handbooks, personnel policies, and management training and lectures on employment issues.  She has experience litigating matters in state and federal courts, state administrative tribunals, and in arbitration.

Ms. Moore is “AV” Peer Review Rated Preeminent by Martindale-Hubbell and was named one of San Diego’s “Top Attorneys,” “Best of the Bar,” and one of the “Top 40 under 40 Best and Brightest Minds of San Diego.” She was also a 2016 finalist for San Diego Magazine’s “Woman of the Year.”

Eric Schillinger, Esq.Eric Schillinger, Esq.

Trucker Huss

Eric Schillinger of Trucker Huss concentrates his practice in the areas of health and welfare plans, including major medical, dental, vision, life insurance, disability, employee assistance, fringe and other employer-provided benefits. He has extensive experience helping employers comply with the various federal and state laws applicable to health and welfare plans, such as the Patient Protection and Affordable Care Act (ACA), ERISA, the Internal Revenue Code, the Public Health Service Act, HIPAA, COBRA, FMLA and Medicare. As part of his practice, he assists clients with drafting plan and trust documents, amendments, SPDs and other required disclosures for such plans; handling employer and plan audits by the IRS, DOL, EEOC and other governmental agencies; analyzing employee-benefit issues relating to all aspects of plan design and funding, such as the use of Voluntary Employees’ Beneficiary Associations (VEBAs) and plan restructuring that results from mergers, acquisitions, and other corporate transactions; preparing government agency filings, such as private letter ruling requests, ACA reporting, and state disability benefit plan applications; analyzing plan administrative, fiduciary and tax issues, including benefit claims and appeals, coverage mandates, nondiscrimination requirements, and income and payroll tax reporting; and reviewing and negotiating service provider agreements.

Mr. Schillinger has been at the forefront of the ongoing efforts by the new administration and Congress to repeal and replace the ACA and the potential impact on employers. He has given presentations on numerous aspects of ACA compliance and has written articles on the ACA repeal and replacement process for legal publications including the “expert analysis” section of, health care section of Federal Employment Law Insider and the Daily Journal. He has been quoted in articles covering ACA repeal legislation for Business and Legal Resources (BLR®), and He also participates in a law commentary podcast as a guest to discuss the legal, economic and political implications of various ACA repeal and replacement proposals.

Leonora M. Schloss, Esq.Leonora M. Schloss, Esq.

Jackson Lewis, P.C.

Leonora “Lenny” M. Schloss is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. She is the California Leader of the Wage and Hour Internal Audit Subgroup. For more than 25 years, Ms. Schloss has specialized in wage and hour and leaves of absence issues, advised and trained employers on preventative measures including drug testing, drafted policies and agreements including drug testing policies, handled CalOSHA retaliation complaints, conducted wage and hour classification audits and training, and handled employment investigations.

Ms. Schloss has substantial experience litigating single plaintiff and class action discrimination, harassment, retaliation, wrongful termination, and wage/hour cases in state and federal courts including jury and court trials. She has represented employers in mediation, arbitrations and before administrative agencies such as the California State Labor Commissioner, DFEH, EEOC, EDD and DOL. Ms. Schloss has successfully asserted the federal enclave doctrine defense and proven lack of state law application in dozens of administrative and court matters, including two reported decisions.

In addition to her trial experience, Ms. Schloss has successfully handled several union arbitration hearings. Ms. Schloss is a frequent speaker at human resources and other organizations on minimizing employment law liability and other various employment related topics.

Kristina Sidrak, Esq. 
Jackson Lewis, P.C. 

Kristina Sidrak is an associate in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Andrew SommerAndrew Sommer, Esq.
Conn Maciel Carey LLP

Andrew Sommer is a partner with Conn Maciel Carey’s Workplace Safety and Employment practice groups.  He defends employers in a wide range of labor and employment matters, with a particular emphasis on Cal/OSHA enforcement actions and employment litigation. Mr. Sommer represents employers in inspections, investigations and enforcement actions involving Cal/OSHA, and advises on issues related to workplace safety.

Master Class Agenda

Registration and Breakfast
7:00 a.m. – 7:55 a.m.

Welcome Remarks
7:55 a.m. – 8:00 a.m.

How, When, and Why to Drug Test: Your Legal Rights and Limitations in Policy Development and Enforcement under California Law
8:00 a.m. – 9:15 a.m.
Presented by Danielle Moore, Esq., Fisher Phillips LLP
This solutions-focused workshop will kick off with a comprehensive overview of the current regulatory landscape concerning the legality of drug testing.

  • When an employer may conduct drug testing on prospective and current employees in California 
  • The types of drug and alcohol testing methods that are permitted under state and federal law, which are most accurate, and what they are likely to reveal 
  • The ins and outs of developing a comprehensive drug-testing program designed to give you the information you need to make informed and legal hiring and other employment decisions of California-based employees
  • Drug and alcohol testing policy essentials, and instances when enforcement of zero-tolerance policy language may spark legal issues under state and federal law 
  • How to train supervisors and managers on warning signs that someone might be under the influence 
  • The action plan for addressing a situation when you suspect an employee is drunk or high at work 
  • What to do if an applicant or a current employee demands to be retested because the test revealed a false positive result 

As a bonus, you’ll also get BLR’s sample Drug and Alcohol Sample Policy designed specifically for California workplaces!

Requirements and Prohibitions Regarding Post-Injury Drug-Testing and Safety Incentive Programs: How to Comply with OSHA’s ‘Reasonable’ Reporting and Anti-Retaliation Provisions
9:25 a.m. – 10:40 a.m.
Presented by Andrew Sommer, Esq., Conn Maciel Carey LLP
OSHA’s 2016final rule introduced for the first time a requirement for thousands of employers to proactively submit to OSHA their historically private workplace injury and illness data, which OSHA was determined to publish online.  Because OSHA feared this new requirement would cause employees and employers to under-report, under-record and otherwise try to artificially reduce recordable injuries, the new rule included a provision that explicitly obligated employers to maintain “reasonable” internal injury reporting procedures.  OSHA issued subsequent guidance indicating that certain post-injury drug testing policies as well safety incentive programs with rewards tied to injury rates are inherently retaliatory.  Cal/OSHA has been required by fed OSHA to adopt a substantially similar regulation within 6 months of the effective date of the federal regulation, so California employers should become very familiar with these requirements and prohibitions. This session will cover your compliance obligations concerning post-incident drug and alcohol testing and safety incentive programs—and will help you understand when you could be at risk for violating the anti-retaliation provision of the rule, according to OSHA’s recent guidance. You’ll learn: 

  • The key parts OSHA’s recently released memorandum addresses concerning: 
    • Reasonable internal injury reporting policies
    • Post-incident drug and alcohol testing policies
    • Safety incentive programs
    • Compensation and bonus formulas linked to injury rates
    • Post-injury discipline
  • Recent OSHA enforcement activity related to injury and illness reporting and recordkeeping
  • Steps employers should take now to come into compliance and prepare for enforcement under the new rule

Networking & Refreshments Break
10:40 a.m. – 11:10 a.m.

Legalization of Medical and Recreational Marijuana Usage: Updates for Mastering Emerging Compliance Obligations
11:10 a.m. – 12:25 p.m. 
Presented by Danielle Moore, Esq., Fisher Phillips LLP
According to a recent Gallup poll, more people are using marijuana these days. The survey reveals that 43 percent of adults nationwide have tried cannabis. Thirteen percent of respondents said they currently use it, and more than half of Americans favor the legalization of marijuana. Also, a recently released Quest Diagnostics Drug Testing Index™ reveals that drug use among American workers has reached the highest level in 12 years. The findings came from analyzing 10 million workers’ employment-related drug tests.

Given the uptick, employers nationwide are left struggling to fully understand how recently passed state laws legalizing recreational marijuana possession and use and other state laws authorizing the use of medical marijuana impact what they can and can’t do to monitor and restrict cannabis use or possession among their employees.

While marijuana is still illegal under federal law, 28 states have passed legislation giving medical marijuana usage the green light. Eight states and the District of Columbia have legalized recreational marijuana. And, several states have enacted laws making the possession of small amounts of the drug a civil, not criminal, offense. How does the evolving legal landscape concerning medical and recreational marijuana affect employment policies on drug testing and off-duty conduct? During this session, you’ll learn:

  • The changing legal landscape concerning medical and recreational marijuana usage—what’s protected under state law and the practical impact of Proposition 64 when marijuana is still illegal under federal law 
  • Best practices for federal contractors to follow with respect to drug testing and usage to ensure they don’t lose federal funding
  • Which California laws explicitly include employee non-discrimination protections and which likely don’t—and best practices for complying with the Fair Employment and Housing Act (FEHA) and the Compassionate Care Act
  • How to address the off-duty use of marijuana in California
  • How medical marijuana laws interact with unemployment and workers’ compensation-related benefits
  • Whether medical marijuana usage may qualify as a reasonable accommodation under the Americans with Disabilities Act (ADA) and FEHA
  • How to develop and manage drug-testing policies and practices in light of the current legal landscape
  • How to decide if your organization should test for marijuana
  • What to do if an employee tests positive for marijuana usage 
  • The role of fitness for duty evaluations, and best practices for workplace safety

Networking Lunch
12:25 p.m. – 1:25 p.m.
(Your boxed lunch is included with your registration!)

The Opioid Epidemic: Steps You Can Take to Manage Effects, Combat Worker Addiction, and Limit Your Legal Liabilities
1:25 p.m. – 2:40 p.m.
Presented by: Leonora M. Schloss, Esq., and Kristina Sidrak, Esq., Jackson Lewis, P.C.
Opioids are a powerful class of drug and usage has proven to result in debilitating addictions. According to the Centers for Disease Control and Prevention (CDC), drug overdose-related deaths are up and six out of 10 of fatalities involve an opioid. Since 1999, the amount of prescription opioids sold in the United States has quadrupled even though there has not been a change in the amount of pain being reported. The CDC has characterized the situation as an epidemic, and this crisis is particularly concerning for employers.

If your facility is regulated by federal OSHA, you have a duty to maintain a working environment that is “free from recognizable hazards … causing or likely to cause death or serious harm to employee” under the Occupational Safety and Health Act’s (OSHA) general duty clause. Opioid use among your workers could compromise a safe working environment. If your facility is regulated by Cal/OSHA, opioid abuse in the workplace may violate the California Injury and Illness Prevention Program standard, which requires companies to recognize workplace risks, abate those risks, and train workers in safe work practices. Consider, too, that if an employee is injured on the job, he or she may be prescribed a powerful opioid to manage the pain. The longer the employee is on that medication, the greater the risk of addiction. What can your organization do to minimize the risk of addiction when employees are taking prescribed drugs to manage chronic or acute pain?

During this session, you’ll learn:

  • Practical—and legal—steps you must take to manage the impact of the opioid epidemic 
  • Recent research showing why opioid usage is a serious cause for concern for employers nationwide
  • The practical impact opioid usage can have on worker productivity and safety, and when you have an obligation to take action under OSHA’s general duty clause and California’s Injury and Illness Prevention Program standard
  • Strategies to reduce the risk of employees becoming addicted to powerful opioid painkillers when they’re taking the drugs to cope with a workers’ compensation injury 
  • Warning signs of a potential opioid addiction 
  • How HR, safety, medical professionals, and workers’ compensation claims adjusters can take steps to help addicted workers manage their issues 

Networking & Refreshments Break

2:40 p.m. – 3:00 p.m.

How Employee Benefit Programs, Including Health Insurance and Employee Assistance Programs, Can Help Employees Recover From Addiction
3:00 p.m. – 4:15 p.m.
Presented by Eric Schillinger, Esq., Trucker Huss
Last year, the Department of Labor (DOL) stepped up enforcement of mental health parity requirements for group health plans. This represents a growing effort to ensure that group health plans are in compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA). In fiscal year 2016, the DOL investigated 330 health-care plans finding dozens of violations—with most of the related to how  plans handle non-quantitative treatment limits (NQTLs).

If your organization’s group health plan covers mental health and substance abuse disorders (MH/SUD), there are specific financial parity requirements the plans must meet concerning things like copays and deductibles. Also, parity is required concerning benefit limitations affecting the scope or duration of treatment. In total, there are six categories of benefits where parity between MH/SUD and medical/surgical coverage must be demonstrated. This session will examine final MHPAEA rule requirements and the most common compliance trouble spots to watch out for, as well as practical strategies on how employee assistance plans can be used to help addicted workers on the road to recovery. You’ll learn: 

  • The most common ways MHPAEA violations occur with respect to NQTLs for substance abuse 
  • Key questions to ask, so you can evaluate whether your company is at high risk 
  • Potentially problematic healthcare plan treatment limits, including practices that deal with intensive outpatient programs for substance abuse treatment
  • When your employee assistance plan (EAP) offerings are covered under the MHPAEA, and when they aren’t 
  • Useful strategies for getting employees to take advantage of EAP plan offerings that can help them manage substance abuse-related issues 
  • How much substance abuse costs employers in terms of lost productivity time and absenteeism—and the business case for making substance abuse assistance offerings part of your benefits package
  • Communication strategies for talking to employees you are concerned may need professional help due to addiction

Final Q&A
4:15 p.m. – 4:30 p.m.
Get your last-minute questions answered by our expert panel. 

Program Location and Date

When: Tuesday, December 5, 2017
Where: Courtyard Los Angeles Pasadena/Old Town
180 North Fair Oaks Ave.
Pasadena, CA 91103 
($7 Valet Parking)

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