In This Issue
October is National Cyber Security Awareness Month
Safety Training Incentive Program
Drug Testing Compliance and the Employment Risks Associated with CBD
Law Enforcement Pilot Program
Q. How many state parks are located in Tennessee?
Click here for the answer
Message from the President
Among the many acronyms used when discussing safety in the workplace, S.O.R.T. is one of my favorites. S.O.R.T. stands for Stop, Observe, Recognize and Take Ownership, and reminds us to address safety hazards and create a safe work environment.
Stop — It is necessary to take time to evaluate the work area and equipment for hazards, not only at the beginning of a work shift, but also as conditions change. When we are rushed, we miss the small details that matter. Always take time before a task begins to assess the work you are about to do. If conditions change or things are not going as planned, stop work and decide what needs done to correct the situation.
Observe — Take time to gauge your environment. How are weather conditions, lighting and temperature at the work area? Are the needed personnel and tools ready to go? Has all equipment been thoroughly inspected?
Recognize — Once you have observed the work area, what hazards do you see? Your ability to recognize hazards improves when you can put lessons learned and training to use. Because of this, it takes time to properly train employees to recognize safety hazards, which enables employees to mitigate them, thereby protecting them and others from injury.
Take Ownership — Ownership is the most important part of the process. Once you recognize hazards or potential issues while on the job, own them. Ensure they get properly corrected in a timely manner. It is easy to just walk past an issue and think that it is not your problem. In reality, any hazard on the job is your problem. If someone else is hurt or there is property damage due to a hazard you ignored, it will have an effect on you as well. Incidents affect a jobsite as a whole and, depending on the severity, can have far-reaching consequences for an entire organization. One of these consequences is the guilt you may experience if a coworker is injured as a result of a hazard you could have addressed. Taking ownership means more than just communicating the hazard to other people in the work area. Stop work, if necessary, and get the right people involved to correctly address the hazard.
A common theme we try to remind members of is: No matter what our title is or our job duties are, we are all risk managers. Use the S.O.R.T. tool to remind yourself to take time to properly evaluate your work area for hazards — and take ownership of them.
Dawn R. Crawford
We’ve been hit with ransomware . . . now what?
Basic risk management tells us that we must identify our exposures, examine how the exposures can be evaluated, select and implement our risk management method, then monitor and evaluate.
Developing a cyber incident response plan is critical for equipping your employees to know the basic steps for responding to a ransomware event. This plan should outline a step-by-step approach of what to do when an incident occurs, specific to the needs of your organization. If you operate 24 hours a day, 7 days a week, your plan should be broad enough to address incidents that occur after normal business hours and on weekends and holidays.
PE Partners recommends that your cyber incident response plan become an element of an overall, comprehensive cyber risk management program, and that your employees are continually trained on this program. Training should include courses on general employee awareness and incident response. General awareness training focuses on prevention, while incident response training covers what to do when an event occurs.
As you develop you cyber risk management program and your cyber incident response plan, here are some steps to get you started if you are affected by a cyber incident:
- Contact your IT professionals — internal or external to your organization. Your IT professional may recommend disconnecting the network connections, including servers, computers, routers, modems, etc. The goal is to keep your computers from talking to each other. Your IT professional may also recommend that you not turn off your computers in order to preserve evidence.
- Secure your backups.
- Contact the local FBI field office to report the event.
- File a claim with PE Partners.
If your entity has not developed a cyber incident response plan, it will make the recovery more costly, take more time, and create additional disruption within your organization and for the citizens you serve.
Visit our online portal to download a copy of our Sensitive Information and Computer Security Guideline that provides more details and information about protecting your sensitive data, computer protection and a self-assessment checklist.
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Safety Training Incentive Program
Despite the challenge that incentivizing safety presents to risk managers and those responsible for safety, the City of Clinton has successfully created an incentive program centered around training that focuses on safety and employee engagement.
Angela Sylvester, human resources manager for the City of Clinton, worked with the safety committee to create a safety training and incentive program. The program was launched in July of 2019, and employees have until November 30th to earn 12 points for safety training. Employees who earn 12 points will be eligible for a $200 safety incentive bonus.
Points may be earned through in-person or online training, or by completing a written safety packet and quiz.
City of Clinton's Safety Committee
“Every employee learns differently and their jobs have different requirements, so we want to put training in place that benefits them and allows them to meet the requirements for the bonus,” Sylvester says. “This program has been the brainchild of the safety committee. We will continue to reevaluate it and will potentially add new ways for our employees to earn points. This type of training helps our employees know that their safety is a priority for everyone.”
Each month, a city-wide, classroom-style training class is held that allows employees to earn four points. Since July, the city has hosted a Response to Active Shooter class; a Stop the Bleed class; First Aid, AED, and CRP training; and drug-free workplace training.
Participant at the City of Clinton's CPR training
“We try to offer at least one safety training each month where employees can earn points toward their safety incentive bonus,” Sylvester says. “Next year, when they have a full year to earn points, we plan to require a higher number of points for employees to earn.”
Individual departments can also submit training classes that are at least 45 minutes in length so that points can be assigned.
The City of Clinton offers employees the ability to take safety training online through PE Partners’ Local Gov Risk Academy, or by reading a printed safety packet and completing a brief quiz. The safety packets were created by pulling together safety training resources available on PE Partners’ online portal, information from OSHA and other similar resources.
Sylvester has created a Driver Safety Packet, Equipment Packet, Injury Packet, and PPE Packet. A sample packet can be viewed here. Employees who complete one of the four available safety packets are eligible for two points per packet.
“We want to make sure employees are engaging in multiple types of training,” Sylvester says. “We also want the training to be an employee engagement opportunity, with employees coming together from multiple departments.”
The City of Clinton’s previous safety incentive program paid employees $200 if their department had not experienced any injuries that year. This type of program has long been frowned on by OSHA for fear it will discourage employees from notifying their employer of work-related injuries. This type of program can also present issues related to the Americans with Disabilities Act. Focusing the safety incentive bonus on training, available in multiple formats, makes every employee responsibility for safety, and does not discourage anyone from notifying their supervisor or their human resources department of injuries.
For the City of Clinton, the tone is set at the top. City Manager Roger Houck has been supportive and encouraging of the work that the safety committee is doing to protect employees and citizens.
“I want to make sure that our employees are educated about how to do their jobs safely,” Houck says. “Training can help heighten your awareness when you are doing your job duties. The safety committee has done a great job. Employees from each department have pledged to bring ideas for both their department and other departments. This process brings good insight to the whole city. It’s a great program and we hope to continue it. Our goal is to keep all our employees safe.”
Incentivizing safety training inspires everyone to understand that we are all responsible for safety. It’s easy to become complacent and forget the dangers associated with local government jobs. Every day, public works, parks and recreation, police, fire, maintenance and many other local government employees are faced with tasks that can lead to an injury.
In Fiscal Year 2019, PE Partners members filed a combined total of 2,615 workers’ compensation claims. If we can prevent even one claim through safety and risk management training, then we have made a difference.
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Drug Testing Compliance and the Employment Risks Associated with CBD
By Ross V. Smith, Attorney at Farrar & Bates, LLP
Local governments are becoming increasingly interested in detecting drug and/or alcohol use by employees. Unlike employees working in the private sector, the U.S. Constitution protects governmental employees from unreasonable searches, and it is well established that drug tests, which utilize blood-testing, breath-testing or urinalysis, constitute searches that come within the ambit of the Fourth Amendment. 1
Simultaneously, the increase in popularity of products containing Cannabidiol, commonly known as CBD, means that employers must understand the effects CBD has on drug tests. Among the chemical compounds contained in the Cannabis plant, CBD is the second-most well-known, with the most well-known being delta-9-Tetrahydrocannabinol, or THC. While CBD products are legal in Tennessee and often marketed as not containing any THC, it is important to understand that a product containing CBD may lead to a positive drug test for marijuana.
It is therefore extremely important for local governments to understand when they may require employees to submit to drug tests and the effect that an employee’s use of CBD products may have on a drug test. Likewise, it is important for employees of local governments to be aware of the potential employment risks of using CBD products.
I. When can a local government require an employee to submit to a drug test?
Local governments in Tennessee may generally require employees to submit to drug tests in the following circumstances: (1) randomly (i.e., on a neutral selection basis) for employees in safety-sensitive positions2 ; (2) as a conditional offer of employment; (3) upon reasonable suspicion that an employee is impaired as a result of drug or alcohol use; (4) as a follow-up to an employee’s participation in a drug or alcohol rehabilitation program, unless the employee entered the program voluntarily; (5) as part of a routine fitness-for-duty evaluation; and (6) after an accident or other incident related to public safety.3
Tennessee’s Drug Free Workplace Program covers most of the required and authorized drug tests listed herein4. Specifically, Tenn. Code Ann. § 50-9-106 lists the requirements for drug tests under all scenarios, except those that are conducted on a random basis. Random drug testing, therefore, is the source of the most confusion in Tennessee, and many local governments are not educated as to when they can require random drug tests of employees.
In order to perform random drug tests on employees, a governmental employer must typically show that “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”5 The Supreme Court has held that employees in “safety-sensitive positions” meet this burden.6 A safety-sensitive position is one in which the employee performs duties that are “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”7
There is no bright-line test an employer can utilize to determine whether a person is in a safety-sensitive position, and you are not likely to find an exhaustive list of positions that fall into this category. In determining whether a position is safety-sensitive, a court will typically look at the magnitude of harm that could result from the use of illicit drugs on the job. Normally, no special need exists with regard to the typical city employee who is not involved in law enforcement or holding another position that may pose a risk to the public if the employee is under the influence of drugs or alcohol (i.e. employees with clerical-type jobs). However, there are non-law enforcement employees who would qualify as safety-sensitive employees, such as school bus drivers, lifeguards, gas line workers, etc.
If you are performing a drug test on an employee in a safety-sensitive position, you do not need individualized suspicion or a warrant/probable cause. If, however, you are performing drug tests on employees more generally and are not sure whether they are in a safety-sensitive position, it is best to contact your city attorney and discuss the legal implications of requiring the employee to submit to a drug test.
II. The Complicated Relationship Between CBD and Drug Tests
To understand the effect that use of a CBD product may have on a drug test, it is important to have a novel understanding of the differences between cannabis, marijuana and hemp. While the terms are often used interchangeably, they have vastly different meanings. Cannabis is an umbrella term used to describe a specific type of flowering plant. In this sense, cannabis is a category of plant. Hemp and marijuana are not technically species of the cannabis plant, but, rather, varieties of cannabis plants, differentiated based on the amount of THC in the plant. More specifically, hemp generally refers to varieties of cannabis that contain 0.3% or less THC by dry weight.8 On the contrary, marijuana generally refers to varieties of cannabis that contain more than 0.3% THC by dry weight.9 Thus, the difference between hemp and marijuana is the amount of THC they contain.
Additionally, marijuana is illegal in Tennessee and is considered a Schedule VI substance under Tennessee law.10 Hemp is expressly excepted from the list of Schedule VI substances and is legal to possess in Tennessee.11
With that background in mind, the next step is understanding that when an employee submits to a drug test screening for marijuana, the test is actually screening the employee’s blood or urine for the active chemical compound THC. The test does not screen for other chemical compounds such as CBD. However, depending on the source or variety of the cannabis used to produce a CBD product, the CBD product may contain trace amounts of THC.
Thus, if you or one of your employees uses products labeled as CBD, it is imperative to understand that the product may contain THC, albeit in low levels. Even at low levels, though, THC may build up in your system in sufficient amounts to register on a drug test. This is mainly due to THC being a fat-soluble substance, which means it is stored in the body’s fat cells and is retained for an extended period of time. For comparison, when a person drinks alcohol, the alcohol is generally filtered through the body in a matter of hours. THC, on the other hand, can take several days or weeks.
As a result, if an employee’s blood or urine contains enough THC to register on a drug test, the test will come back as a positive test for marijuana. This is true even if the employee has only been using substances labeled as CBD. Standard drug tests typically cannot differentiate between hemp products and marijuana products. This is because drug tests for marijuana only screen for THC in the specimen. It does not matter where the THC originated from — whether from using marijuana or a hemp-derived CBD product.
Further, Tennessee laws related to Drug-Free Workplace Programs require that all specimen collection and testing for drugs be performed in accordance with the procedures adopted by the U.S. Department of Transportation, compiled at 49 C.F.R., Part 40.12 This effectively means that the federal government controls the testing procedures and the limitations on medical review officers confirming test results as positive or negative.
A vital provision in these rules and regulations is that a medical review officer cannot “accept an assertion of consumption or other use of a hemp or other non-prescription marijuana-related product as a basis for verifying a marijuana test negative . . . Consuming or using such a product is not a legitimate medical explanation.”13 This means that even though THC levels may be present in an employee’s specimen due to use of CBD products only, a medical review officer cannot take that into account to negate a drug test that is returned positive for marijuana. Furthermore, a medical review officer “cannot verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act.”14 This means that even if a state has legalized medical marijuana, the medical review officer reviewing a drug test cannot negate a positive result for marijuana based on it being legal in the state where consumption or use took place.
Ultimately, CBD products are legal in Tennessee and may be a beneficial alternative to traditional medicines. Employers and employees must understand, however, that using a CBD product that contains even trace amounts of THC may result in a positive-confirmed test for marijuana. There have also been instances where people use products labeled as “THC-free” or “No THC,” only to be shocked when a drug test comes back as positive for marijuana.15
If you are going to use CBD products or become aware that your employees are using CBD products, beware the complexities and risks associated with them. Most drug policies are zero-tolerance and it could end up costing you or your employee a job.
For more information on Tennessee’s Drug-Free Workplace Programs, click
- Skinner v. Ry. Labor Execs.’ Assoc., 489 U.S. 602, 615-16 (1989); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989).
- See generally Von Raab, 489 U.S. at 665.
- See Tenn. Code Ann. § 50-9-106.
- Drug Free Workplace Programs, codified at Tenn. Code Ann. § 50-9-101, et seq.
- Skinner, 489 U.S. at 619.
- Id. at 620.
- Id. at 628.
- Tenn. Code Ann. § 43-27-101.
- Tenn. Code Ann. § 39-17-402 (containing exceptions for certain institutions of higher education and for certain medical conditions).
- Tenn. Code Ann. § 39-17-415.
- Tenn. Code Ann. § 50-9-107 (applying to Drug-Free Workplace Programs).
- 49 C.F.R. § 40.151.
- See, e.g., Can You Take CBD and Pass a Drug Test?, available at: https://www.consumerreports.org/cbd/can-you-take-cbd-and-pass-a-drug-test/ (depicting a case of a positive confirmed test for THC after taking a product advertised as “zero THC”).
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Law Enforcement Pilot Program
Because law enforcement liability is a critical exposure area for Public Entity Partners members with police departments, PE Partners has launched a Police Risk Management Scholarship Pilot Program. This program provides extensive use of force, response to resistance training during an intensive two-day program. The training is open to law enforcement agencies of any size, and is offered in cooperation with the University of Tennessee’s Law Enforcement Innovation Center (LEIC) and the Tennessee Association of Chiefs of Police (TACP).
- Aims to provide law enforcement agencies with opportunities to complete high-level training;
- Allows agencies with less than 60 full-time, certified officers to provide de-escalation and decision-making curriculum to all of their full-time officers within a four-year period.
The curriculum covers methods for neutralizing and resolving volatile situations through basic verbal skills and strategies, followed by decision-making and tactical firearms training in a VirTra V-300™ interactive simulator. In the 300-degree force options training simulator, participants are able to apply the skills required to defuse a potential threat in order to avoid the use of unnecessary force. By using a scenario-based simulator, participants undergo an immersive, realistic experience when applying de-escalation principles.
PE Partners’ scholarship covers the registration fee for the program. To be eligible for the scholarship, you must be a police officer in an agency that currently receives law enforcement liability coverage through Public Entity Partners. The agency will be responsible for travel or any additional costs for attending the program.
Police departments from Gatlinburg, Harriman, Kingston, Pigeon Forge, Sevierville, Spring City and Waynesboro have registered for the program. Because class sizes are small and availability is limited, currently scheduled sessions are now filled to capacity. Information about additional sessions will be forthcoming in a future newsletter.
Please contact Michael Fann at mgfann@PEpartners.org or 800.624.9698 for more information or any questions about this program.
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