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3 Emerging Trends in Labor and Employment Law for 2018

Laws affecting inquiries into the criminal histories of job applicants and workplace drug testing are among the issues manufacturers will grapple with in 2018.

As we prepare to ring in the New Year, it’s time for manufacturers to begin planning for the next wave of labor and employment law trends forecast to emerge over the coming year. Not surprisingly, we will continue to see deregulation at the federal level and an uptick in state-level protections. Looking ahead to 2018, manufacturers should have these 3 game-changing developments on their radar:

1. A Growing Ban-the-Box Movement

Many states have adopted ban-the-box laws that restrict inquiries into an applicant’s criminal history in a job application. Driven by concerns that criminal background checks have a disproportionate impact on minority candidates, these laws are designed to prevent employers from eliminating candidates with a criminal record from the hiring process, without first considering their qualifications. While the laws vary, most restrict what job postings can say, as well as an employer’s right to ask about or base employment decisions on arrest/conviction records. Ban-the-box laws have already been passed in 29 states – including Ohio (private sector only) – and over 150 localities, and are expected to grow over the coming years.

So, how can employers prepare? As these laws expand across the nation, employers should review their state and local laws, and ensure their policies and procedures comply. This may involve restricting or eliminating inquiries into criminal history – including both convictions and charges not resulting in a conviction – on job applications or during the hiring process, as well as limiting any inquiries into convictions and/or jail sentences less than five years old. Further, certain ban-the-box laws restrict criminal-history inquiries only to periods after a conditional offer of employment had been made, or after the applicant has been deemed qualified for the position.

In addition, employers should train supervisors and HR professionals on these changes, consider adopting a blanket “no conviction” policy where appropriate, revise application materials to meet the standards of state and local laws, and obtain proper authorizations from the candidate.

2. The Revival of Last-Chance Agreements

As many companies – both large and small – have discovered, the opioid epidemic has had a significant impact on the workforce. The increased use and misuse of opioids has left employers grappling with issues of lost productivity, higher absenteeism, an increase in workplace injuries and higher medical costs. Many businesses are even experiencing labor shortages due to an increased difficulty in hiring and retaining a sufficient number of workers who can successfully pass a drug test, leading some to forego such testing altogether.

In response, many employers are taking a different approach. In addition to providing educational and counseling resources to employees, companies are rethinking their zero-tolerance drug policies and instead opting for the use of last-chance agreements. This arrangement offers drug-dependent workers a second chance to get clean – as opposed to immediate termination – after the first positive drug test, so long as the employee completes mandatory drug counseling. This provides an opportunity for employees to obtain treatment and get back into the workforce. Remember, employers should seek to balance the concern of being viewed as intrusive to an employee’s private life, against potentially having a worker quit, overdose and/or create a safety or liability issue due to an addiction that was ignored. However, employers still reserve the legal right to enforce disciplinary actions and/or termination for drug-related workplace misconduct. As such, the permitted (and prohibited) use of prescription drugs should be clearly communicated within the company’s policy.

3. Use of Oral Swabs as an Alternative to Traditional Drug Testing

In recent years, many employers have faced an increasing pressure to revamp their drug testing policies. Due to labor shortages, some major manufacturers have had to limit their drug testing in the workplace. This has given rise to the use of oral swabs as a quick, low-cost alternative to traditional drug testing methods.

Currently, many employers use urine testing as the gold standard for establishing impairment. This testing is the accepted method in federal drug testing guidelines, as adopted by the Department of Transportation (DOT). While the DOT has not yet adopted the use of saliva or other tests to establish drug use and/or impairment, there has been a push for oral swabs by employers. Proponents of saliva testing note it has many benefits over urine or blood tests. It can provide quantitative results with little need for any invasive procedure, and lessens the risk of fraudulent samples that can be an issue with urine testing. Additionally, saliva testing costs less and has a quicker turnaround time.

Earlier this year, the Department of Health and Human Services (HHS) revised its Mandatory Guidelines for Federal Workplace Drug Testing Programs, which requires qualifying organizations to comply with new panel standards effective October 1, 2017. Of note, the HHS now permits a Medical Review Officer to recommend the collection of an alternate specimen (e.g., oral fluid) in limited situations where an individual is unable to provide a sufficient amount of urine specimen at the collection site, as permitted by agency policy. It is likely DOT will eventually follow these guidelines, although it has not yet done so. Employers should continue to follow this trend as it develops.

Bob Robenalt is a partner at the Columbus, Ohio, office of Fisher Phillips, a national management-side labor and employment law firm. He regularly represents manufacturers on a variety of labor and employment matters.

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