Drug-Free Compliance for State Construction Jobs is a Mandate

Lots of contracting businesses covet state construction projects. But if your business plans to bid on one or more in the future, you’ll have to comply with Ohio Bureau of Workers’ Compensation (BWC) eligibility requirements—including one that mandates compliance with an approved drug-free workplace program.

There’s good news in all this. First, maintaining a drug-free workplace is certainly beneficial to your company and your employees on many levels. Second, compliance with this mandate is fairly straightforward.

Background

According to the BWC, there are three main eligibility requirements to bid or work on state construction jobs:

1. Establish and/or maintain an active Ohio workers’ compensation policy and be in good standing;
2. Apply for and meet the requirements of a comparable drug-free program,
   formerly known as level 0 OR BWC’s Drug-Free Safety Program (DFSP);
3. Report progress to BWC on an annual report.

With regard to the drug-free requirement, the BWC maintains a database of contractors and subcontractors that are approved to bid or work on state construction or public improvement projects.

State contracting authorities will only consider bids from contractors who are part of BWC’s approved drug-free state construction contractor database. It will not allow contractors or subcontractors of any size to provide labor services on a public improvement project unless BWC’s state construction contractor database lists the employer as approved.

Therefore, to be eligible to bid or work on a state construction site public improvement project, a contractor or subcontractor must be enrolled in and implement either the BWC’s DFSP, or a comparable program.

How to apply for the BWC’s DFSP, or for a comparable drug-free program

Complete an Application for the BWC’s DFSP. Your business will need an online account with the BWC to apply. If your business doesn’t already have one, you can easily register at bwc.ohio.gov.

Some quick pointers:

• If you only want to fulfill the minimum requirements needed to apply to workers and supervisors on the job, then check the box on the application to request comparable participation.
• The BWC’s DFSP offers a premium rebate to eligible employers for implementing a loss-prevention strategy to address workplace use and misuse of alcohol and other drugs, including prescription, over-the-counter and illegal drug abuse within the context of a holistic safety program. If you’re interested in earning a rebate; if you want a premium rebate for successfully completing the program; or if you are willing to exceed the minimum requirements needed by applying the program requirements to all company employees at all times during each program participation year, check the box on the application to request the Basic or the Advanced level of participation in the DFSP.

The Basic and Advanced levels of the DFSP have more requirements; but successful participants may receive a premium rebate, as noted above, for an unlimited number of years or be eligible for start-up grants. Note that comparable program participants do not receive premium rebates. However, you only need BWC approval for the comparable program to be eligible to bid or work on state construction sites. You will be able to operate a BWC-approved comparable drug-free program that applies, at minimum, to anyone who works on a state construction project and/or supervises labor on a state construction site.

Contact your local BWC customer service office to speak with a BWC employer services staff member for specific guidance about the program or level that would work best for you.

BWC’s Comparable drug-free program level requirements

1. Develop and maintain a written drug-free policy that applies to all workers and supervisors who may provide labor or supervise labor on a state construction project. The policy should state that employees cannot have alcohol or drugs in their systems while working on a state job. It should also list consequences for violating this work rule. Contractors may follow the guidance in BWC’s Drug-Free Safety Program Self-Implementation Workbook to develop a drug-free policy.
2. Ensure one hour of employee education on substance abuse issues is provided for ALL workers, including supervisors, before they initially work on any state construction site. This also applies to subcontractors. This education should help to reduce the risk of on-the-job accidents caused by drugs/alcohol through prevention. A qualified substance professional must be involved in preparation of educational materials.
   Note: Each employee or supervisor only needs to get this one hour of education one time.
3. Supervisors must also receive one additional hour of skill-building training. This will help them to identify employees who show signs of alcohol or drug use. This rule only applies to contractors who have supervisors on-site at state construction jobs. A qualified substance professional must be involved in the delivery of supervisor training.
   Note: Each supervisor only needs to get this one hour of training one time.
4. Ensure pre-employment drug testing occurs for anyone whom you are bringing onto a state project to provide labor or supervision. Any new employee or subcontractor on a state construction job must pass a drug test before he or she can begin work. This does not apply to current employees.
5. Ensure random drug-testing, typically by putting your workers and supervisors into a pool with employees of other employers for purposes of a random draw. All workers and supervisors on a state construction job must be subject to the possibility of being selected by neutral computer software operated by a third-party administrator for random drug-testing. Again, this includes subcontractors. Employees may be placed into a pool through a consortium along with employees of other employers and be considered compliant regardless of whether any of their own workers are subjected to a random drug test as long as the consortium draws at the minimum percentage required by the contracting authority (at least five percent of the total pool numbers over the length of the state project).
6. Ensure post-accident and reasonable suspicion testing are conducted as necessary. All employees, including subcontractors, are subject to drug and alcohol testing after an accident as defined in BWC’s drug-free program materials. Also, if there is reasonable suspicion that an employee has alcohol or drugs in his or her system, this could lead to testing.
7. Offer employee assistance. State construction contractors must have available a list of employee assistance vendors to give to any worker who has a substance problem, including anyone who tests positive.
8. Submit an annual report. State construction contractors must file an annual report with BWC that details their drug-free program efforts. Employers will be required to complete an online  Drug-Free Safety Program (DSFP) Annual Report.

One final note: Basic and advanced level requirements are not the same as those for the comparable program and require employee education and supervisor training every year, rather than just one time only for each employee and supervisor.

Get more information on the DFSP here.

If you’d like to discuss issues relating to the bidding on state projects in more detail, please contact Roger Gingerich, CPA, ABV, CVA, CCA at 440-459-5700 or [email protected].