What do you do with employees who have a history of injuries? Fire them and they may sue, but leave them on the job and they might harm themselves or others.

Now there’s a way for legally removing these people from the workplace.

Some companies conduct fitness for duty (FFD) evaluations in these situations. They’re similar to post-offer, pre-hire physical exams to determine ability to do the job. But FFDs can be done any time during employment and are broader: They determine physical, mental and emotional fitness.

A comprehensive FFD program would include:

• pre-placement medical evaluations, often done with safety-sensitive jobs
• absence management, including people who call in sick Mondays and Fridays and presenteeism, people not fully productive under stress from family issues or medication
• for-cause drug and alcohol testing, based on credible report of impairment, and
• pre-assignment clearance to new tasks or after leave due to injury or FMLA.

An FFD would withstand legal challenges if a company:

• administers it fairly across the board
• makes tests reasonable and job-related
• doesn’t make decisions on past health records, such as cancer history
• keeps test results confidential, and
• gives a disqualified employee the right to submit his or her own evidence as to fitness for duty.

For more information on FFD evaluations, click here.

Does your company use FFD evaluations? Let us know in the Comments Box below.

The provision has been on-again, off-again since 2008.

Recently, a federal court ruled that transportation safety was a compelling reason to mandate observation when employees who previously failed or refused to take a drug test are retested.

The rule requires observers to check people producing urine samples for prosthetic or other cheating devices. This provision takes effect Aug. 31, 2009.

The court took into account the recent development of a wide array of available cheating devices (see our previous article here). It also said the rule didn’t violate the Fourth Amendment prohibition on unreasonable searches and seizures. The judges on the court stated unanimously that employees who had failed or refused a previous drug test had diminished expectation of privacy.

Transportation Department (DOT) data show that the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing.

DOT’s rule negates any collective bargaining agreements that prohibit or limit the use of direct observation collections for return-to-work and follow-up testing.

(Click here for the Federal Register notice on the new regulation.)

Do you support DOT’s decision to require observed collections in these circumstances? Let us know in the Comments Box below.

The Equal Employment Opportunity Commission (EEOC) had sued J.B. Hunt Transport, Inc., claiming that the rights of applicants for over-the-road (OTR) truck driving jobs had been violated.

Hunt chose not to hire OTR applicants taking certain prescription medications with side effects that could impair driving.

The trucking company argued that the large vehicle size and the extreme driving conditions faced by its OTR drivers warranted extra safety precautions.

Hunt cited Department of Transportation (DOT) regulations that allow an operator to require and enforce “more stringent requirements relating to safety of operation and employee safety and health.”

The two-judge majority on the 2nd Circuit disagreed with the EEOC, saying the applicants lost their jobs because of the medications they took, not because of any real or perceived disability under the Americans with Disabilities Act (ADA).

To find that the applicants were regarded as disabled, the EEOC had to show that Hunt perceived the rejected applicants as limited from a class or a broad range of jobs.

The two-judge majority found that OTR driving didn’t qualify as a class or broad range of jobs.

But Judge Sotomayor found that the EEOC has shown Hunt believed the rejected applicants were unfit to drive any truck — which qualified as a broad range of jobs.

Had one of the other two judges agreed with her position, Hunt would have been found in violation of the ADA.

If that were the case, Hunt would not have been allowed to set higher safety standards for its OTR drivers than required by the DOT.

The majority ruling in the Hunt case and Sotomayor’s dissent are online here.

What do you think about this case and Sotomayor’s dissenting opinion? Let us know in the Comments Box below.

We polled our editors of safety publications at Progressive Business and came up with this list:

10. More research on dangers of nano-particles to exposed employees. Among the new studies, one that showed long, thin carbon nanotubes exhibited the same effects as long, thin asbestos fibers when injected into mice.

9. The National Institutes of Health says the superbug methicillin-resistant Staphylococcus aureus (MRSA) is no longer limited to hospitals. Outbreaks of one strain — community-associated MRSA — have turned up in athletes, prison inmates, the military, daycare attendees and those who live in communal conditions such as college dormitories.

8. MSHA proposes and enacts a flurry of new mining rules in the wake of previous years’ mining disasters, such as Crandall Canyon, including: a policy letter on underground communication and tracking devices; a new final rule that increases the pounds per square inch that pressure seals must withstand in an explosion; a proposal to test miners for drugs and alcohol; and a final rule requiring additional safety equipment for rescue teams at underground mines.

7. California gets serious with heat stress on the job. The company that hired a pregnant teen who died of heat stroke this spring after working in a vineyard without enough shade or water was hit with the highest fine ever issued to a farming operation in the state. Merced Farm Labor’s license was also revoked until Aug. 24, 2011 after the death of Maria Jimenez.

6. The employer payment for most types of PPE rule takes effect. OSHA started enforcing the new rule May 15, 2008. The only exceptions: non-specialty safety-toe protective footwear; shoes or boots with built-in metatarsal protection requested by an employee; logging boots; and everyday work or ordinary clothing used solely for protection from weather.

5. An explosion at an Imperial Sugar Refinery near Savannah, GA, kills 14 people and injures dozens more. The blast destroyed a packaging plant. The cause, ignition of dust, placed an emphasis on workplace ignitable dust hazards.

4. Amendment to the Americans with Disabilities Act to place burden on employers. The revision may dramatically increase the number of employees who can legally qualify as disabled. Action step for employers and those in charge of safety: Instead of an open-ended light-duty assignment that might define a worker as disabled, re-assess the returning worker’s condition every two weeks.

3. Distracted drivers prove fatal and costly. A Sept. 12 collision between two trains in California killed 25 people. The National Transportation Safety Board is still investigating, but preliminary information shows the locomotive engineer of one train was using his cell phone to text within 30 seconds of the accident. In the wake of the crash, the Federal Railroad Administration enacted a new rule banning railroad employees from using cell phones (except in emergencies) and other electronic devices on the job. In another case, International Paper Co. agreed to pay $5.2 million to settle a personal injury lawsuit after one of its employees used her cell phone while driving for work. The employee hit another car, and its driver had to have an arm amputated as a result.

2. Now OSHA can multiply PPE and training fines by the number of employees. Under a new rule, OSHA can issue per-employee citations for those types of violations starting Jan. 12, 2009.

1. President-elect Barack Obama promises an “invigorated” OSHA. Obama supported the Protecting America’s Workers Act as a Senator. The bill would increase OSHA penalties. Obama has also called on OSHA to issue standards “in a timely and more effective manner.” While the financial crisis may delay some reforms the new administration may want, some changes can be made by just shifting existing funding.

Vote for your top safety story or nominate one of your own in the Comments Box below.

The random urine test positive rate is 47% higher than the pre-employment rate in general industry, according to Quest Diagnostics.

In jobs where random drug testing is mandated by federal law, the opposite is true. The random rate is 18% lower than the pre-employment rate.

Workers may think they need to be “on good behavior” when applying for jobs. After they’re hired, old habits may come back.

Here are the positive test rates reported by Quest:

• general workforce, pre-hire: 3.6%
• general workforce, random, 5.3%
• federally-mandated, pre-hire: 1.7%, and
• federally-mandated, random: 1.4%.

Overall, Quest says drug use among employees and applicants in the general workforce declined to 3.6% in 2008 from 3.8% in 2007.

Quest is a provider of drug testing services. More data is available here.

Cause of the accident: a roof-bolting machine fell on the employee’s leg.

His employer sought to deny workers’ comp benefits based on the positive drug test.

On top of the positive test, the employee also admitted he had obtained the prescription for methadone under false pretenses.

The state’s Workers’ Compensation Commission ruled the employee should receive benefits because the company didn’t prove that the drug use caused the accident.

State law states “no compensation shall be awarded to the employee … for an injury … caused by … the employee’s use of a non-prescribed controlled substance.”

The key phrase was “caused by.” The Commission found that the company didn’t show the drug use caused the accident. The decision held up when the company appealed.

Key: If an employee’s drug use didn’t cause a workplace accident and injury, workers’ comp benefits can’t be denied.

Cite: Dominion Coal Corp. v. Bowman, Court of Appeals of VA, No. 0628-08-3, 2/10/09.

John Keenan crashed his car into another driven by Laurie Riley. Her husband, Gregory, was a passenger.

While her husband’s injuries were minor, Laurie suffered knee and pelvis injuries that left her unable to work.

The Rileys claim Keenan’s long work shifts at Glen Habina & Sons, Inc., were partially to blame for the accident.

Keenan usually worked eight-to-nine hour days as a vehicle driver. But sometimes, after he completed his driving shift, he worked several more hours repairing vehicles.

On the day of the accident, Keenan worked his regular shift but didn’t work any extra hours repairing vehicles.

After work, he went to at least one bar. After the accident, his blood-alcohol level was measured at .178. At trial, an expert estimated that Keenan had consumed 13 12-ounce beers before the accident.

The Rileys claimed the combination of work fatigue and alcohol consumption caused the crash and sought to hold two bars and his employer responsible.

Good news for employers: A jury and then a state appeals court both ruled sensibly. They found that the alcohol consumption was a factor in the crash, but not work fatigue because on the day of the crash he hadn’t worked long hours.

The appeals court noted other courts have found employers liable when their employees cause auto accidents after required long work shifts.

But the court said that wasn’t the case here. Keenan worked only nine hours on the day in question, and he had a sufficient rest period — at least 13.5 hours — before his previous shift.

Imagine this: One of your employees is on pain medication that could compromise his safety and productivity, as well as that of co-workers. But, because of state law, you have to accommodate the employee. Not only that, but federal law says the pain medication is illegal.

What medication are we talking about? Marijuana.

That’s the case in Oregon, and a business lobbying group is pushing a bill to exempt employers from having to accommodate medical marijuana patients.

House Bill 2497 would allow businesses to terminate employees who test positive for marijuana, even if they are legally authorized to use it for pain management.

Employers would also be notified when a worker applies for a “marijuana card,” under the measure.

Associated Oregon Industries (AOI) sees medical cannabis as a liability for employers.

AOI’s vice-president for government affairs, J.L. Wilson, told The World that many employers have horror stories about employing medical marijuana users and impairment on the job.

Wilson notes that marijuana remains federally illegal, but in Oregon, employers are forced to accommodate those who have been approved to use it for pain.

Wayne Haythorn with Mothers Against Misuse and Abuse says the bill is designed to stir up fear and punish people who need marijuana for pain.

In what situations do doctors approve pot use for pain?

One example: Jude Isaacson had back surgery in 2000 and developed a spinal infection. She was using a wheelchair.

“Cannabis has brought me back,” she said. “I can focus now.”

Dr. Michelle Petrofes who treats six medical marijuana patients says pot isn’t her first line of treatment by any means. She said patients have to have tried every other medication first for pain before she will consider marijuana.

Pain management expert Dr. Daniel Rusu says most patients who request cannabis for pain management don’t qualify for it.

He also believes this battle over marijuana will continue.

How can employers balance compassion for workers in severe pain with their employee drug policies? What do you think is the right course of action? And readers from Oregon, let’s hear from you, especially. You can leave comments in the box below.

It’s fired an employee of almost 30 years who was found with an open can of beer while driving a snowplow.

Police stopped the 57-year-old worker after receiving a call from a passerby.

Officers found an open can of beer in the plow, according to CBC News.

The driver passed a breathalyzer test, however the officers issued him a ticket for $438 for possessing open alcohol in a motor vehicle.

The city suspended the worker with pay. Then the downtown borough council of Ville-Marie voted unanimously to fire the employee.

The city has fired other municipal workers for drinking while using city equipment over the years.

In 2003, a worker was fired for driving his snowplow through a red light and hitting another vehicle.

The union and the borough are negotiating the terms of the man’s dismissal.

The makers of the Whizzinator have pleaded guilty in federal court to two conspiracy counts, putting an official end to their product.

The company owned by George Wills and Robert Catalano, Puck Technology, sold the device that helped men pass drug tests.

The Whizzinator is a prosthetic penis that comes with a heating element and fake urine. It was sold from 2005 through this year.

Federal prosecutors claim the product helped people circumvent federal workplace drug-testing programs. They cited customer testimonials on the company’s Web site, including one in which an employee bragged about using the device to pass a drug test required by Department of Transportation regulations.

The men will be sentenced in February and face up to eight years in prison and a $500,000 fine each.

The Whizzinator entered public consciousness three years ago when former Vikings running back Onterrio Smith was caught with one in an airport.

The device made news a second time when a couple asked a convenience store clerk in McKeesport, PA, to heat one in a store microwave so the fake urine would attain body temperature. The store clerk called police. The woman, who wanted the fake urine to pass a pre-employment drug test, pleaded guilty to disorderly conduct and agreed to pay to replace the store’s microwave.

OSHA regulations prohibit use of microwaves to heat food once bodily fluids have been in them.

The facts:

Michael Adkins slipped on a patch of ice in a freezer at work. He applied for workers’ comp and received payments.

His employer contested the award. Adkins admitted smoking pot three days before the incident.

At trial, a doctor testified that the drug test report showed Adkins’ physical or mental faculties were altered at the time of the accident.

Texas state law says if an employee is under the influence at the time of a workplace accident, the company doesn’t have to pay comp.

However, Adkins tried to say he wasn’t high at the time of the accident and presented two co-workers as witnesses, who said he didn’t appear impaired that day at work.

State law doesn’t specify a level of illegal drug use at which a person is considered under the influence. It doesn’t work the same as blood-alcohol level after a car crash.

Who won the case?

Answer: The company won. It didn’t have to pay Adkins’ workers’ comp because he was under the influence of a controlled substance when he sustained the injuries.

The court put more weight on the doctor’s testimony than that of Adkins’ co-workers.

Analysis: Demand drug tests after injuries

While no two states’ workers’ comp laws are exactly the same, many withhold payments when an employee is injured while under the influence of alcohol or drugs.

That’s why it’s crucial to have employees drug-tested after workplace injuries. The results won’t just affect comp. They’ll also affect the decision on the employee’s future at your company.

(Adkins v. Texas Mutual Insurance Co.) To see court documents related to this case, click here.