Mark DeRosa, VantagePoint Benefit Administrators
Mark is President of VantagePoint Benefit Administrators, a key provider of employee benefit services to a variety of entities throughout the country. Prior to starting his own company, Mark spent ten years working in various capacities in the insurance field at Empire Blue Cross and Blue Shield, Group Health Incorporated, and Precise Benefits Administrators. Mark’s primary role with these companies involved the design and market introduction of alternative funding programs to the fully insured and self-funded marketplace.
Mark is the past President of the Group Insurance Association and currently serves on the local Board of Directors of the National Association of Insurance and Financial Advisors and the National Association of Health Underwriters. He holds a Master of Business Administration from Binghamton University and a Bachelor of Science in Business Economics from the College of Oneonta.
[00:00:02] You're listening to Thinking Outside the Bud where we speak with entrepreneurs investors thought leaders researchers advocates and policymakers who are finding new and exciting ways for cannabis to positively impact business society and culture. And now here is your host Business Coach Bruce Eckfeldt
[00:00:31] Welcome everyone this is thinking outside the bite. I'm Bruce Eckfeldt. I'm your host today. I'm here with Mark DeRosa. Mark is CEO and founder of vantage point benefit administrators and we're going to talk a little bit about sort of the HRA the employee employer relationship side of this whole business. Mark welcome to the program. Thanks Bruce. So what do we start. I always like to have Gascón I start a little bit about your background. Tell us about the business. Like how did you get into this space and professionally what have you been doing before this.
[00:01:02] So I've been in the play benefit arena working with employers for almost 30 years now and over the years. What's happened is with the increase in government regulations and compliance requirements our business and our expertise has really morphed from not only doing employee benefits moving into the world of H.R. administration working with companies to help develop a best practices and Compliance Enforcement.
[00:01:27] And so you know if you look at this I mean I think one of the things in the cannabis world that we talk a lot about is kind of the legality and the whole issue of you know state versus federal and things like that and people talk about the finances. People talk about kind of the risk to the business from a kind of plant touching and not plan touching kind of this.
[00:01:46] But I think one of the things that gets overlooked is this whole issue of if your eat whether you're in the kind of his business or you're not in the cannabis business how do you respond to this from kind of an employee policy employee engagement point of view for these states that have cannabis legal. You know state law so whether it's medical or recreational. I now have people who are taking cannabis and I think that causes a lot of kind of issues questions uncertainty. So from each our benefits policy sort of legality point of view I think you'll be addressing talk about that and start wherever you think it's best to start. But you know I'm curious what your view is on the cannabis side as an adviser as someone who helps companies figure out these policies helps figure out how to engage and manage employees in different ways. How do you see this playing out.
[00:02:37] Well one of the interesting things that employers have to worry about now is it's not just at the federal level and it's not uniform across the country. So employers certainly employers that are in multiple states have many more issues to deal with when it comes. And then with cannabis there's actually two different categories of it. There's there are the states that have passed cannabis use for recreational use. And then there are states for medical use. And that in and of itself creates more problems for an order of how to define that. Yeah. And what most employers are looking at is that going back a little bit back in time in looking at when the Americans With Disabilities Act was passed. And that applies to every company that has more than 15 employees. So this really affects a lot.
[00:03:22] And and in that where those federally it is across across the United States.
[00:03:25] Exactly right. It's a federal law. Any any employer that has more than 15 employees has to provide what is defined as a reasonable accommodation if there is a defined disability under that law. So when that law was first passed and what's happened in the past happens in the future we're seeing the formation of that on the cannabis. What I mean by that is so yes.
[00:03:46] Let's go back and talk about the politics. What did that actually do in terms of business.
[00:03:50] Right. So what that data is is the federal government came up with a list of what they deemed a disability. And then they went to the employer and said you can't hire or fire based on these disability.
[00:04:04] So this is a protected class I'm in Louisiana now and that's going to protect the masses. All right.
[00:04:10] And beyond that if a person comes to you and has those types of disability you also as the employer have to provide reasonable accommodation. So I'll give you an example. So let's say there is somebody that has debilitating disease that's related to muscle and them sitting in a chair is not they can't sit in a chair at that strophe for eight hours a day. So that might be economic chairs that might be accommodate for that person a standing guest might be more accommodating for that person. So those are very small examples where an employer quite honestly is incurring additional expense to provide the accommodation for that employee.
[00:04:46] It wasn't that disabled category you would define that person in that situation as a protected class. Correct. So now what that means just to make sure I get this right. So from an employer point of view it means that I cannot use that as a decision maker or a part of my decision making process to hire them or not hire them or to fire them and not fire them correct.
[00:05:08] Unless it affects the recked correlation to being able to perform the material functions of the position.
[00:05:16] Ok. All right now. So this is one example. Right. What are some of the other kind of cases that come up are things that you know typically come up or maybe even the things that employers don't think about that fall into this category of protected class and things that you cannot hire or fire liaison.
[00:05:31] So one of the biggest ones and I'll use this because I think it ties in to candidates where we go it is alcohol. So alcoholism is Ashie is a protected disability under the Americans of Disabilities Act. So that does not mean that an employer is allowed to come to work drunk every day. Yeah. OK. But we all know how society and employers will look at somebody who is lovingly says I'm an out Aulich they will always be that fear of. Well are they going to come to work drunk.
[00:05:59] Are they going to be able to perform their functions because I think this is the crux or this is the key to this discussion.
[00:06:04] So I'm one of a series of candidates and I'm doing my research and I'm on their LinkedIn profile or something and I see that they are you know members of a or are somehow connected to AA or somehow I'm learn that they are an identified have identified as an alcoholic or associated with alcoholism in some way that I cannot use that as a discriminatory test or a discriminatory issue or I can't use my decision making process about whether or not I'm going to hire them. That's exactly right. And if they are if they are an employee and I learn through some process that they are seeking treatment for alcoholism then I cannot use that to make a decision to fire them. So I think and I think that says it so.
[00:06:48] And I think that's level one is I'm not sure if people know that and I think you know people who are in business are dealing with employees you know may not appreciate that on it in and of itself.
[00:06:56] But I think that's that's a good explanation of why this is really an important issue for people and just business in general. But it leads up I think to this whole kind of question of cannabis because I think you know if well let's talk about it because I think that there's kind of two different angles.
[00:07:11] Clearly the alcohol isn't so when you say that said alcohol ism is defined medical condition is a defined medical disability defined medical disability and that's how the and that's by this act by the federal government that defines alcoholism as a disability.
[00:07:32] So another question is we have an addiction to cannabis is not a defined medical disability. As I know but it sort of skews this thing up and saying hey if someone is taking cannabis for medical purposes it receives you know and it gets very complicated but at a state level receives basically a letter from the doctor saying that cannabis might help your condition. They take it to a dispensary they get you know under state medical use laws are able to obtain cannabis and use it whenever they're using it. You see now had this kind of medical cause a medical application of cannabis in many states and then you have the recreational side. So let's talk about how from an employer point of view what are the questions that start to come up or what do employers start to think about because yes. You can't come to work high can't come to pakai.
[00:08:20] Yeah. So I guess it does actually have a song about that one because I think that's maybe the first thing is so I guess that makes kind of common sense or we can kind of say that but what does that actually mean what does an employer need to do or they need to kind of make sure that everyone knows you can't come to work high.
[00:08:37] Right. So every employer still has a legal responsibility to provide for a safe and a productive work environment. So that's the overriding theme. So it all comes down to the performance. So you're exactly right. An employee can't take cannabis during work. They can't have cannabis infused food at lunchtime and come back to work you have to lunch time. OK. So there's that line that has now. But the other issue is let's say you are at an interview on the prospective employee and I volunteer to say that the term that we're that we're seeing in the courts is I'm a card holder right because if it does I'll use you will actually get a physical I.D. card.
[00:09:17] The state issued card that says you are now authorized by the state to consume cannabis for medical purposes.
[00:09:24] Karaca so that that's the time and that's what when we see it in some of the court cases that we're seeing right now that's where one of the issues are because now up into play brings that up. Now there are various other state laws that they may be protected under quite honestly a lot of employers are familiar with these laws.
[00:09:41] And this is all state right because now you know ice is still federally illegal so that the federal laws are now coming into play on this one. It's a state law is that now potentially kick in for employers.
[00:09:54] Again that's exactly right. And then if I can as the conflict there the other thing that a company needs to do is while if we already have a drug testing policy in place marijuana under the federal law it's still considered illegal substance. It's a drug. So now what do we do when it comes to drug testing.
[00:10:11] Yes OK.
[00:10:12] This is a measure of is there is a distinction between a company that only operates in one state versus a state or yeah because drug testing is controlled at the state level and virtually every state has slightly different rules or regulations related to drug testing no place allowed to deal with they're not allowed to do.
[00:10:28] Ok. So where do we start on this because I think that as an employer I certainly would be very confused right now. I would be to.
[00:10:34] So I've got offices in multiple states. I've got a general policy that says we have a drug testing policy and positive tests to marijuana use is grounds for dismissal. Under our policy now I've got a situation where I've got some offices in states where they have medical and or recreational use. How does this affect me. How does this affect this policy.
[00:10:57] So the key the key front employers perspective is one to know the states that where it's allowed on a recreational basis and states that allowed on a medical basis. That's step number one step number two is you have to have a written policy. Employers have to have a solid handbook that specifically talks about drug testing and how they view alcohol as an example and not cannabis as an example in those handbooks.
[00:11:26] So don't need to put in my handbook a specific section on cannabis separate from alcohol or separate from drugs in general.
[00:11:33] Our recommendation is absolutely yes. OK. OK. And the typical model is using alcohol and the abuse of alcohol in the work environment is is generally a very good foundation to start from. OK. I'm not going outside legal counsel or outside H.R. expertise somebody like a firm like ours to do this. You know they want to do this themselves entirely start with that language and then work from there. But again they have to be aware of what's going on in this specific state because the state laws have to do with where does the employee live.
[00:12:04] Well what does the employee live act.
[00:12:07] Meaning meaning once so if I have an office that's right on the border of a state if I'm in if I'm a company in California and I have an office in New York OK I see I see all right for the employee that lives in New York is California requirements and in me as as New York residents I might have other rights giving me access to cannabis than out in California.
[00:12:27] Wow. So you really need to create the pause even if your business is in one state and say that state has no cannabis. You say you're I think it's Idaho right now it is the only state that has absolutely no no access to candidates in any way whatsoever. So my office is in Idaho but someone is across the border. They as an individual may have rights or may have the access to cannabis under that state law correct.
[00:12:51] That again from an employer's perspective best practice on that is then you identify that your handbook sections in the handbook relate it to the states where you have employees.
[00:13:01] So for employees in such and such state that worked for us. Here are the guidelines and heroes. Here is the policy because we know you have we have this America.
[00:13:12] And they're saying the same thing when it comes to what they're doing when that employee is doing interviews and they're looking to interview in those in those particular states to abide by what the drug testing rules are and so forth in those particular states.
[00:13:24] But let me just make sure I understand so as an employer I can say you can't come to work under the effects of cannabis which means you know you can't use it before you come to work you can't use it over lunch you can't use it during during work hours. I can do that. Like there's no rights of the employee to be able to use that product during that time. Zacharek That's correct. So even if I have a medical license even if I'm medically authorized to use cannabis for a legally authorized condition as an employer I can still say look we get that that's cool on your own time but you can't come to work.
[00:13:59] You cannot be impaired at work.
[00:14:01] You cannot be impaired to work. So I guess my follow up question is you know for alcohol.
[00:14:06] You know we've got breathalyzers. You know alcohol has a certain kind of timeframe in your system. I guess it feels like we've gotten to the point where we can kind of tell if someone is drunk or not and it's reasonably deterministic we don't have that downers right like that to say.
[00:14:22] Yeah so the blinking of the effects you know how long it lasts.
[00:14:26] And the testing I mean the testing is you know it's a fat soluble molecule that sticks around for 30 plus days. How do I know so what's going on.
[00:14:34] I work at that. That's where we see is it going to be the biggest the open ended liability from an employer. Because you're exactly right. There currently is no test available that can determine current impairment. And that's the key. It's the current impairment so to your point a breathalyzer blood out of content we can tell you currently impaired at the moment there is no current test for candidates to do so. So that's where an employer is very concerned and should be very concerned because now it's it's a he said she said it's a judgment call on that. So again best practices. And it's all about documentation creating the KPI is creating the benchmarks. And as much measurable components that you can do if you are concerned that potentially happening for employees that work for you.
[00:15:26] Yeah this certainly seems like from an employer point of view I've got kind of big categories are big kind of lines nice or dry.
[00:15:32] It's like wow you know someone is you know working in the accounting department and they're you know sending out bills and things like that's like OK yeah.
[00:15:39] Like you know I don't want you high like I need to know that you're going to perform your job well you know if someone is driving a 20 ton truck around making deliveries you know that's a very different kind of risk liability concern that I have associated their impairment. So do you recommend or do you have situations where you may you may take a different approach or you may have a different sort of approach to how you define the policy and how you define some of the things around how we determine if you're impaired or a level of threshold or the level of test that we're going to put you through while we wait.
[00:16:13] So be careful with that also because you can identify a class and treat that class totally differently. Steve it's under that assumption. So you have to be very careful with that. So again comes back to what is the company wide policy going to be with regard to that. So in many respects employees probably have to up their game a little bit when it comes to employee performance and tracking and Kondakov of performance is really what what an employer's threshold has to be and it probably has to be higher than it currently is.
[00:16:45] Yeah. So really what I'm saying is that you need to think through what are your standards and what are your evaluation techniques and kind of the bars and the thresholds that you're setting company wide across the board regardless of just sort of the cannabis issue. If you want to be able to have a system that is effective in measuring performance measured measuring people's ability to perform their job functions and be YAML to be able to filter out situations that may be indicative of use somewhere.
[00:17:15] That's exactly right. That's exactly right. It's right it's all comes back to again and it's all about setting that tone and that approach right from the beginning even in the interview process with regard to establishing. And when we are not doing a drug test.
[00:17:30] Talk to me. I guess I don't know that much about the whole drug test process.
[00:17:33] I mean I you know if you're a company that is deciding I guess at one level how do you decide as a company if you're going to have a drug test policy because I'm assuming you can have a policy that says you can't you can't be under the influence. But we're not going have a drug testing system or we can say no we actually have a drug guys system. How does a company actually make that decision and then if they decide they're going to have a drug testing system or policy process doesn't work. How do you actually set that up.
[00:17:57] So generally from a from an employer perspective an industry perspective any any type of position or a company that's in a position where they're safe the risk involved trucking chemicals anything close to believe that those entire industries will have across the board mandatory drug testing and then the key with that is what's the language when they talk about drug testing. Are they going to say we're going to do a drug test and if anything comes up that that precludes us from hiring you. So you might pass everything else but if we have a uniform drug test that says you cannot be hired if you fail any of these exams. That's a policy. And there are other companies that all say that that drug test results are still contingent on your hiring. So that's very it's almost sounds the same but but it is enough different different.
[00:18:46] What is the practical difference between those two statements.
[00:18:48] Because the other one is it's mandatory. You fail.
[00:18:52] You can't get the job even if we like you and we have who we would hire you.
[00:18:56] Right. Automatic skills you meet all the scales. We like you. You have everything that we want but sorry you failed this test. We cannot hire you because our policy doesn't allow us to hire you. Yeah. OK. And the scenario number two is well the job is still contingent on the drug test and let's see how the drug test comes back. Let's see what the severity of the drug that's in it. Right.
[00:19:18] So if you're it's soon if you if I said that basically I would go through the entire interview process if it's a hey this looks great part of our interview process and policy is that we you know you have to take a drug test before you do a final offer. You would take the drug test. I would get the results. And you know if it shows that you're a regular user of crack cocaine I could say you know what that's not a good fit for us versus if I saw you know a low level you know marijuana use in the last 30 days I could say OK look you know we're assuming that this is not going to be a problem for the job. We're willing to give it to you. You know understanding the fact that that you know you understand the policy that you can't come to work high.
[00:19:56] That's exactly right. And there was actually a court case similar to that and Rhode Island related to that they should really which went that someone was making the hire was refused somebody was told that data that a drug test that the job was contained in on a drug test and that at that point they volunteered to say I am a card holder. And they said during the interview process that we promised not to ingest cannabis in any form during the workday.
[00:20:20] And the employer decided not to hire the person and the person was taking was a case that went to court where the person was saying well this was it they following their policy they would not follow that policy.
[00:20:32] So the judge came down against the employer and said they would not file. And there were also two laws in the state of Rhode Island that was recited by that by the judge in that decision but it really hung on the fact that one it was medically related. So it was protected on the royal law with regard to you know being medical. And the second one was the company was not consistent in the enforcement of their drug policy that drug testing policy.
[00:20:57] Yeah I mean if there's one thing I think when it comes up in a lot of places but certainly this one is a have a policy make sure it's written. People get it you know that they are signing off or things like that that has to be in a written policy that is in place beforehand. And then to apply that policy consistently across the board. And I think it sounds like if you don't have either one of those like you don't have a policy it's not written. People don't have it or you're not applying it consistently from case to case the case that is where you're going to where you face risk.
[00:21:30] And here's the third thing that's a little bit unique to cannabis unlike in the past is proactive education. OK so tell me about that. Like what we you do to slow employers. Employers should. We all know the trend that's happening in this country with regard to cannabis. It's a national conversation. And whatever the projected use of it currently is it's it's it's there so it's important for employers to not hide behind the legality hide behind a handbook hide behind a policy. It's one of those things again especially with all the states promoting it from a medicinal perspective that I think it's very important for an employer to do some education for the employees and the case could take on another series of forums that could be on tape during an orientation webinars it could be during an annual review of company policies and procedures. It could be in any form. But I think it's important that it's that an employer does bring that up because quite honestly an employee is probably just as confused as with what's going on because they're still here. Well it's illegal if it's legal in the federal saw it. How can the state that I live in allow me to smoke and then also I crossed the border and now I can do it recreationally out on the street.
[00:22:40] But in this situation because I crossed the state border I can't. So I think there's a lot of confusion on both sides. And whenever I see confusion best practices let the employer take the lead. Yeah let's do this on a proactive basis because more often than not employees look to their employer for probably a lot of things that employers don't realize across all facets of benefits. And at the end of the day cannabis and the pilot it's not a policy it's going to end up in some form or another. It accounts it's another employee benefits. It's about a rule it's a process it's a policy that we have in place and it's related to the well-being of that employee and I'm a good employer should always be focusing on the entire holistic well-being of their employees. And it involves some additional education when it comes to this morphing brand new. Yeah we'll see use throughout the country. I think I think it's a great best practice.
[00:23:34] Well certainly given that it is sort of fletching changing so much I mean you know employees might not even know what the state of things as an employer. Yeah it seems like a great way to kind of enhance the whole relationship with your employees as being kind of an open honest you know relationship that you're having in terms of what these are expectations.
[00:23:56] This is what is out there. This is expected behavior. You know this is OK. This is not you know let's you know if there's a problem with that mentor mentor have that conversation up front before you have an incident then trying to deal with it after the fact. So kind of the ostrich strategy is probably not a good one.
[00:24:11] That's exactly right. And then again as much as that's not true it's a perspective it also helps the employer from a legal perspective. So when the court see that there was proactive activity happening prior to the actual event it can only help the employer.
[00:24:24] So let's go back to beginning on this and we talked about this whole 15 employers or 15 employees or more so this applies to anybody I mean anybody that has employees can do this.
[00:24:33] There's this 15 person number as being kind of you know with the federal law stuff kicked in. That really is it isn't then if I have 15 employees or more I need to do this. I need to do this across the board.
[00:24:44] If you have one employee you have to deal with this because cannabis is not is not a protected disability at this point in time under that law.
[00:24:51] It serves as a kind of thought experiment here to say we go federally legal say that you know Canada's kind of gets rolled into this. What are the impacts that like what would then happen from cannabis use point of view across across the country.
[00:25:06] Well the unknown is is from an employer's perspective. So one of the biggest things in D.A. now is that reasonable accommodation that an employer has to provide. OK. Well what would be the reasonable accommodation for cannabis user. Yeah. Nobody knows. So we don't know if that's going to go. Certainly if it ends up being a protected disability in some form and employers like consistency and like to know what the facts are right. We're in an environment right now where we don't know where this is going. And that uncertainty creates issues and uncertainty quite honestly creates more potential lawsuits. So if you agree with it it not if it becomes part of the list of items that are allowed to be defined under the Americans With Disabilities Act that at least an employer can no more consistently what they do.
[00:25:56] Yeah. And actually it's kind of that uncertainty is really the the problem here it's not so much whether it's right or wrong or whether you know what you need to do and just knowing what it is then I can deal with it. I mean it's like a business what if you don't mind taking risks is not who you love. I know what they are and I can manage them right.
[00:26:12] Maybe kind of quick summary for folks. I think we've covered a lot. If you're an employer in general and if you have employees regardless of what state Arion you probably need to be thinking about how cannabis is playing into your policies and your handbooks. So it sounds like one making sure that you have written policies in place that are distributed and people know it out too that you're actually applying those policies in a consistent effective manner. Right.
[00:26:44] And then three I think it was a really good point you made which is get ahead of this conversation. So have have this as a part of your conversation with your employees when you're reviewing benefits.
[00:26:55] When you're talking about updates to policies and procedures whether it's individualized reviews or were all company reviews the hiring process onboarding process making sure that you're covering these things those three things will help you dramatically in terms of getting ahead of this whole game and having minimizing your risks and Muslim Carnatic just minimizing the potential drama that can come up in employee situations. You know regardless of going to court you know just having no conflict with employees and having dozens or two employees that's a problem in and of itself.
[00:27:24] Exactly right. Good.
[00:27:25] So Mark this has been great if people want to find out more about you about your company have detail questions about candidates and our policies and benefits.
[00:27:35] What's the best way to get a hold of you and find out more information saying Call us have a direct line at 5 1 6 5 9 9 2 1 2 0. And even on the Celo even with the rest extension titanite 5 you can certainly review our Web site vantage point benefit Dadkhah.
[00:27:53] Excellent. I'll make sure that those in the show those people have those and you're working nationally with companies of all different sizes on benefits and plans and policies and handbooks and things like that.
[00:28:04] So that's that's correct. You can you can be a resource to just about anyone out there. Thanks so much for taking the time. This is really a fascinating conversation and I love the fact that this is this is everyone this is people not just in kind of his Vespa business. Anyone who has a business with employees this is really awful bad. My pleasure.
[00:28:22] You've been listening to Thinking Outside the Bud with Business Coach Bruce Eckfeldt to find a full list of podcast episodes. Download the tools and worksheets and access other great content. Visit the Web site at thinkingoutsidethebud.com. And don't forget to sign up for the free newsletter at thinkingoutsidethebud.com/newsletter.