As the California Court of Appeal has noted:

"In light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover – an employer, private or public, clearly has a legitimate . . . interest in ascertaining whether persons to be employed in any position currently are abusing drugs or alcohol."

Substance abuse costs businesses at least $100 billion annually in absenteeism, injuries, medical liability and health care costs. About 8% of full-time workers and 9% of part-time workers are illicit drug users. Approximately 6.2% of full-time employed adults are alcohol dependent. Research confirms that worker drug use and heavy alcohol use are associated with lower productivity, employee absenteeism, workplace accidents and higher health insurance costs. The additional costs to employers in terms of damages resulting from employees under the influence of drugs and/or alcohol cannot be estimated.

Drug and alcohol abuse in the workplace presents two overarching challenges for the public employer:

1. Knowing what steps the agency must take under the law to address substance abuse in the workplace; and
2. Identifying the legal and practical matters an agency should consider before undertaking permissible measures to prevent and remedy drug and alcohol abuse.

The specific legal issues with which employers must be familiar include:

• Employee privacy rights under both California and federal laws;
• Legal limitations imposed by the Americans with Disabilities Act (ADA), the Fair Employment and Housing Act (FEHA), and the Rehabilitation Act;
• Employer obligations under the U.S. Department of Transportation regulations;
• Federal and California Drug-Free Workplace Act requirements; and
• Areas of potential liability under California common law.

Indeed, attempting to strike a balance between an employer's right to maintain appropriate standards of performance in the workplace and an employee's rights to privacy, due process, and freedom from discrimination often result in employment disputes and litigation. A balancing must occur at every step of the employment process, from the pre-employment application through termination, in order to minimize disputes. This workbook examines this process and provides an initial guide to balancing employer interests and employee rights in addressing drug and alcohol abuse in the workplace.

Topics Include:

• Addressing Drug and Alcohol Issues Through Preventive Measures
  • Pre-Employment Preventive Measures
  • Preventive Measures for Current Employees
  • Checklist for Pre-Employment, Pre-Promotion, and Periodic Drug and Alcohol Testing
• Addressing Drug and Alcohol Issues in the Workplace When Preventive Measures Have Not Been Successful
  • Reasonable Suspicion Drug Testing
  • What Should the Employer Do Once it has Reasonable Suspicion that an Employee is under the
  • Influence of Drugs or Alcohol at Work?
  • What Should the Employer Do Once it Confirms Positive Test Results or that an Employee has a
  • Drug or Alcohol Abuse Problem?
• Employers’ Statutory/Regulatory Obligations with Respect to Drug and Alcohol Issues in the Workplace
  • The Federal Drug-Free Workplace Act of 1988
  • The California Drug-Free Workplace Act of 1990
  • Department of Transportation Drug and Alcohol Testing Regulations
  • Proposition 64
• Establishing a Drug and Alcohol Policy
  • Authority of an Employer to Prohibit Drug or Alcohol Use
  • Drafting a Policy
  • Checklist for Drafting a Drug and Alcohol Abuse Policy
  • Duty to Bargain Over Implementation of Drug and Alcohol Testing Policy
  • Describing the Substances for Which an Employer Will Test
  • What Kinds of Drug and Alcohol Tests are There?
  • Choosing a Reputable Testing Facility
  • Establishing Testing Methods and Objectives
  • Using the Least Intrusive Means
  • Apply Testing Evenhandedly
  • Confirm Positive Test Results
  • Keep Test Results Confidential
  • Training Supervisors and Management Personnel on All Aspects of Drugs and Alcohol Problems
  • Notifying Employees of Drug Testing Policy and Explaining Its Purpose

The California Workers' Compensation Law establishes in all, except certain, designated employments, an exclusive system of compensation for injuries, or death to employees arising out of and in the course of their employment and not caused by the employee's intoxication or intentionally self-inflicted injury.

The California Workers' Compensation Law provides the broadest coverage of employment and benefits in the nation.  Virtually every employer and employee in the state of California are subject to the compulsory provisions of its workers' compensation law.  Every type of legal entity may be an employer: individuals, partnerships, corporations, associations, the state, counties, cities, special purpose or taxing districts and other agencies.  The law applies with equal force to citizens and resident aliens.

The Act provides for medical treatment, temporary disability benefits, permanent disability benefits, vocational rehabilitation benefits, medical benefits, and death benefits.  The benefits are funded through insurance or through self-funding by qualified employers.  Benefits are administered through a process of self-administration with a right of appeal to the Workers' Compensation Appeals Board, the California Appellate Courts, and the California Supreme Court.  The law also provides for preventive measures in the form of safety laws and administrative rules.  The law is frequently liberally construed in favor of providing benefits.

This workbook provides an overview to Workers' Compensation including benefits, procedures, administration, penalties, third-party liability and employer responsibilities.

Topics Include:

• Introduction
  • Historical Background
  • California Law Summarized
• Covered Employment
  • Employer
  • Employee
  • Special Circumstances
• What Is an Industrial Injury?
  • Defined
  • Arising out of Employment
  • Course of Employment
  • Categories of Injuries
  • Types of Injuries
  • Presumptions of Injury
• Benefits
  • In General
  • Medical Benefits
  • Classes of Disability Benefits
• WCAB Procedures and Administration of the System    
  • Introduction
  • WCAB Proceedings
• Penalties
  • Unreasonable Delay in Furnishing Benefits (10%)
  • Civil Penalty Legislation Effective January 1, 1990
  • Late Payment of Medical Fees
  • Serious and Willful Misconduct (50%)
  • Challenges to Benefits
  • Serious and Willful Misconduct of an Employee
  • Discrimination
• Third Party Liability and Employee Civil Actions
  • Third Party Subrogation
  • Who are Third Parties?
  • Actions against Negligent Third Parties
  • Firefighter’s Rule
  • Exclusive Remedy as to Employer
  • Public Agency Liability Arising from the Issuance of Building Permits
• Employer Reporting Responsibilities, Notice Obligations, and Investigation and Claims Management
  • Introduction
  • Investigative Checklists
  • Investigative Checklist for Injuries on Employer’s Premises
  • Investigative Checklist for Injuries off Employer’s Premises
  • Investigative Checklist - Intoxication
  • Investigative Checklist – Altercations and Assault
  • Investigative Checklist – Fall as the Cause of Injury
  • Investigative Checklist – Back Injuries
  • Preserving the Confidentiality of the Investigative Report
• Personnel Management and the Industrially Injured Employee
  • Introduction
  • Labor Code Section 132a
  • Management Checklist for Avoiding Liability for Claims under Labor Code Section 132a

This workbook addresses the full range of issues and obligations faced by employers when dealing with disabled employees. Additionally, the workbook provides materials for undertaking effective interactive process meetings.

Topics Include:

• General Principles
  • Limitations on the Number of Temporary Faculty Members
  • Classification of Temporary Faculty Members
• Historical Background
• Case Law Since Peralta
• Basic Rules
• When Temporary Hours May Advance an Employee Toward Tenure
• Other Relevant Education Code Statutes
• Impact of Collective Bargaining Agreements
  • Provisions in Collective Bargaining Agreements Are Not Preempted by the Education Code
  • Obligation to Bargain Reemployment Preferences for Part-Time, Temporary Faculty
• Impact of ACA on Temporary Faculty Members
  • Who is a Full-Time Employee?
  • How Should Districts Calculate “Hours of Service” for Temporary Faculty Members?
• What is the Classified Service?
  • Non-Academic Employees
  • Definition of “Classification”
  • Rights and Responsibilities of Classified Employees
• Why Go Outside the Classified Service?
• When Can You Go Outside the Classified Service?
  • Merit vs. Non-Merit Distinction
  • Temporary Employment Positions Specifically Excluded from Classified Service
  • Employee in Regular Status Who Reduces Time
  • Must All Work That is Neither Academic nor Exempt Be Performed by Classified Employees?
  • A Note on Employees in Categorically Funded Programs
• Personal Services Contracts
  • To Achieve Cost Savings When All of the Following Conditions Are Met:
  • Contract Mandated by the Legislature
  • Services Not Available Within the District
  • Services Incidental to a Contract for Purchase or Lease of Real Property
  • Contracts Necessary to Accomplish Community College District Goals and Purposes
  • Emergency Appointments
  • Equipment or Materials Not Available from District
  • Services are of Urgent, Temporary, or Occasional Nature
• Under What Circumstances Can a Temporary (Exempt) Employee Become a Classified Employee?

This workbook will cover the full range of issues and obligations faced by employers when dealing with disabled employees.

Topics Include:

• The ADA, the Federal Rehabilitation Act of 1973, and the California Fair Employment and Housing Act
  • The ADA
  • The Rehabilitation Act
  • The California Fair Employment and Housing Act
  • Enforcement
• Who is Covered by Disability Laws?
  • The ADA
  • The FEHA
  • Individual Liability
• What Discrimination is Prohibited?
  • Overview of the ADA
  • The FEHA
• What is a Disability Under the ADA?
  • Physical or Mental Impairment Which Substantially Limits One or More Major Life Activities
  • Record of Substantially Limiting Condition
  • Regarded as Substantially Limited in a Major Life Activity
  • Conditions or Impairments Excluded by the ADA
  • Relationship or Association with an Individual with a Disability
• What is a Disability Under FEHA?
  • Physical Disabilities Covered by FEHA
  • Limits on One or More Major Life Activities under FEHA
  • Types of Major Life Activities under FEHA
  • Working as a Major Life Activity
  • Being Regarded as Disabled
  • Mitigating Measures Not Considered
  • Past Disabilities and Potential Future Impairments
  • Obesity as a Physical Disability
  • Chronic or Episodic Ailments are Disabilities
  • Other Conditions Excluded
  • Temporary Disabilities under the FEHA
• Mental Disabilities
  • Mental Impairments Under the ADA
  • Mental Disabilities Covered by The FEHA
• Medical Condition Under The FEHA
  • Cancer-Related Condition
  • Genetic Characteristics
  • Testing for Genetic Characteristics
  • Medical Conditions Related to Pregnancy
• Who is a Qualified Individual with a Disability Under the ADA and the FEHA?
  • Qualified Individual
  • Essential Functions of the Position
  • Case Examples That Analyze Essential Functions and Reasonable Accommodation
• Acquiring Information About Applicant/Employee Medical Conditions and Impairments—The Do’s and Don’ts
  • The Hiring Process—What You Can and Can’t Ask Job Applicants
  • What is a Conditional Offer of Employment?
  • Pre-Offer Inquiries and Examinations—What You Can Ask before Making a Conditional Offer of Employment
  • Physical Agility/Fitness Testing
  • Drug and Alcohol Testing
  • Some Don’ts
  • What is a Medical Exam?
  • Psychological Testing
  • Genetic Information under State and Federal Law
  • How to Handle the Obviously Disabled Applicant
  • Post-Offer Inquiries
  • Some Acceptable Medical Inquiries
• Fitness for Duty Exams
  • When is a Fitness for Duty Examination Allowed?
  • What Information is an Employer Entitled to Receive Following a Fitness for Duty Examination?
• Reasonable Accommodation
  • Reasonable Accommodation Applies Only to Known Disabilities
  • Standards for a Reasonable Accommodation
  • What Types of Accommodations are Reasonable?
• The Interactive Process/Due Process
  • The Steps of the Interactive Process
  • EEOC Interactive Process Guidelines
  • Documentation and Follow up
  • Due Process Considerations (What if the Interactive Process Yields No Reasonable Accommodation?)
• Collective Bargaining and the FEHA/ADA
• Coordination of the FEHA/ADA and the Family and Medical Care Leave Act
  • Keeping Track of Family and Medical Care Leave
  • Coverage is Different under FEHA/ADA and FMLA/CFRA
  • How Does the Department of Labor Resolve the Interaction?
  • Family Care and Medical Leave under CFRA
  • Coordination of Pregnancy Disability Leave under FEHA, FMLA & CFRA
• Workers’ Compensation and the FEHA/ADA—Dealing with the Interactions Between the Laws
  • Overview of Legal Obligations
  • Is a Worker Injured on the Job Protected by the ADA or the FEHA?
  • Managing Workers’ Compensation Claims with the FEHA/ADA Interactive Process
  • What Can Employers Do to Avoid Increased Workers’ Compensation Costs and Comply with the FEHA/ADA?
  • What Can an Employer Do When a Worker is Injured on the Job?
  • Does Filing a Workers’ Compensation Claim Prevent an Injured Worker from Filing a Charge under the FEHA/ADA?
  • FEHA and Workers’ Compensation Remedies
• Disability Retirement
  • Introduction
  • Eligibility
  • When is an Employer Required to File an Application?
  • Who May File an Application?
  • Deadlines for Filing Application
  • Who Decides Whether to Grant or Deny the Application?
  • What Information is Relied on in Making the Determination?
  • Appealing the Determination
  • Employee Status during Disability Retirement Process
  • Labor Code § 4850 Issues
• Defenses of Business Necessity and Undue Hardship
  • Direct Threat to Health and Safety – ADA/FEHA
  • How to Determine if There is a Threat
  • Health and Safety Defense under the FEHA
  • Undue Hardship Defense – ADA/FEHA
  • Business Realities Defense – Workers’ Compensation
• Remedies Available Under Disability Discrimination Laws
  • Title I of the ADA
  • Section 504 of the Rehabilitation Act of 1973
  • The FEHA