Robert Thompson, Jr., Substance Abuse and Employee Rehabilitation (BNA Books 1990) [485 pp.] Appendices, bibliography, index, table of cases. LC-90-2629; ISBN 0-87179-649-X [$40.00 P.O.B. 7816, Edison NJ 08818-7816.]
The first part of the book consists of two chapters that provide introductory information on workplace substance abuse and a review of legislation and legal implications related thereto. The three chapters in part two provide guidelines for establishing substance abuse policies, procedures, and training. Part three deals with establishing substance abuse programs, and includes chapters dealing with employee assistance programs, rehabilitation referral programs, inpatient programs, outpatient programs, and aftercare and long-term rehabilitation programs.
The appendices distinguish this book from others that cover similar material, and their titles indicate the types of useful information provided: Drugs of Abuse; Glossary of Substance Abuse Terminology; Model Policy, Procedure, and Program; Substance Abuse Policies; Substance Abuse Procedures; Substance Abuse Programs; Federal Controlled Substances Act, Schedules of Controlled Substances; Alcoholics Anonymous Materials; and Codes of Professional Conduct for EAPs.
The main text will be of interest to many readers, but I expect that the appendices will be the most-used part of the book for those actively involved in the development and day-to-day administration of workplace substance abuse programs. The Drugs of Abuse appendix, for example, provides a description of each type of drug, the short-term and long-term effects and a list of code (or, street) names of the drug. The appendix on substance abuse policies provides sample policies for a large manufacturing company, a large service company, a small city government, and a large utility. The appendices, therefore, provide a useful single source for a variety of information that, heretofore, may have been available only in a number of scattered sources.
However, readers attempting to deal with substance abuse problems in smaller organizations, should not adopt, verbatim, the model policies, procedures, and programs. This is similar to using forms from a legal "how-to" book, rather than consulting an attorney to draft a will.
Also statements in the book may lead readers to undertake procedures that could cause problems. For example, at 80, Thompson states "And, in spite of occasional protestations otherwise, an employer can rely on a confirmed positive drug test (confirmed by gas chromatography and mass spectrometry (GC/MS) ) in making decisions on substance abuse." Elsewhere, I have cited a variety of articles indicating that false positives do occur, even in well-designed and well-controlled processes in which GC/MS confirmation was used.1 In one recent case reported in the news media, five of seven confirmed positive methamphetamine tests reported by a laboratory over a six-month period were false positives. These tests were conducted in a NIDA-certified laboratory under the Department of Transportation drug testing program which requires GC/MS confirmation.
Thompson also indicates, at 99, that "... federal rules for selecting individuals for random testing provide a variety of means of selection including selecting social security numbers at random by a computer...." There are underlying technical issues which could lead to problems for an employer who follows such a process. For example, a variety of problems with faulty computer random number generators have been identified in the literature. My own research has shown that computer random number generators cannot be relied upon to generate sequences of number that pass even the most fundamental statistical tests for randomness.2 Thus, care must be taken if such generators are to be used in random drug testing processes.
In summary, Thompson's book, especially its interesting collection of appendices, provides a useful resource in the development and administration of workplace drug testing programs. However, too much reliance on some of the author's statements could be problematic. In fact, the types of technical issues discussed above provide clear evidence that, in this complicated area of substance abuse, one must be aware not only of legal technicalities but also those identified by other disciplines.
John M. Gleason*
1 See, e.g., 1266 Transportation Rec. 10 (1990); 2 Risk 3 (1991).
2 See, e.g., 30 Comp. Meth. & Prog. Biomed. 43 (1989); 2(4) Geobyte 38 (1987).
*Professor, College of Business Administration and Fellow, Center for Health Policy and Ethics, Creighton University.
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Occupational Safety and Health Law. (Stephen A. Bokat & Horace A Thompson, eds., BNA Books 1986) 988 pp. Appendices, bibliographical references, index, table of cases. LC 88-7252; ISBN 0-87179-527-2 [$95.00. P.O.B. 7816, Edison NJ 08818-7816.].
Supplement (1988). 220 pp. LC 89-13999, ISBN 0-87179-640-6 [$30.00 paper]
Coverage is comprehensive. Not only do these volumes address employer responsibilities and potential sanctions for failure to meet them, but they also discuss topics such as employee and union intervention in OSHA litigation, redress for employees who are discriminated against for exercising their rights under the act, and the relationship between state (including workers' compensation) and federal regulation. Moreover, there is discussion of the Federal Mine Safety and Health Act of 1977 and comparison of this law with that which has developed under OSHA.
In addition to indices, detailed and summary tables of contents are provided. These are helpful in quickly locating material of interest. Moreover, it is helpful that the tables of contents are the same for both volumes. This facilitates use of the supplement, and it is hoped that future supplements will continue the practice.
These volumes certainly belong in every large general legal collection as well as in many smaller collections. However, given the swift pace of the law, they would be more useful if annual supplementation were possible.
Anthony J. Dangelantonio*
* Mr. Dangelantonio has bachelors and masters degrees in philosophy from St. Joseph's University (Philadelphia) and Saint Louis University. He is a second year student at Franklin Pierce Law Center with a broad interest in health law.
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Jeffrey V. Nackley, Primer on Workers' Compensation (2d ed. BNA Books 1989) [187 pp.] Appendices, bibliography, index, table of cases. LC 89-31139; ISBN 0-87179-596-5 [$25.00. Address above.]
In a style favoring neither employer or employee, Nackley presents a good introduction to a wide range of issues that arise in trying to compensate employees for (physical and mental) injuries or disabilities sustained in the course of their employment. The first part of the book (chapters 1-5) discusses the substantive rights of employees and their survivors with regard to disabilities, deaths and injuries arising from occupational diseases, work related accidents and other causes. The second part focuses on jurisdiction and procedure, including such matters as judicial review of administrative action. A third part deals with the "employer's protections and liabilities."
Several appendices follow that are, if anything, more valuable than the main text of the book. They are replete with charts dealing with matters such as occupational diseases and income benefits for claimants and survivors. Moreover, a "Notes" section discusses and differentiates various types of compensation statutes and heavily supplements the analyses of issues presented in chapter discussions.
The book, as indicated from its title, is not intended to be comprehensive. Yet it manages to cover a great deal of territory usefully. A shortcoming is its failure to provide much information on compensation schemes that govern the rights of federal workers. For those who do not need such information, the book is highly recommended.
W. J. Hankins*
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John V. Schappi, Improving Job Attendance (BNA Books 1988) [187 pp.] Appendices, bibliography, index. LC 87-27638; ISBN 0-87179-535-3 [$37.00. Address above.]
The text is basically in four parts. The first examines essential components of an attendance policy, e.g., record keeping and dissemination of the policy. It ends with a discussion of federal and state legal constraints affecting matters such as paternity/maternity leaves, handicapped employees and religious observances. Part two deals with the underlying causes of poor attendance. In the third part, Schappi discusses ways to help employees deal with their problems, and in the fourth, he addresses discipline as a means for fostering good attendance.
Part two may be of particular interest to readers of RISK: In addition to discussing ways to deal with, e.g. dual-career families, single parents and responsibilities for elderly care, it deals with smoking, obesity, and other controllable health risks. It also discusses programs to reduce the frequency and severity of on-the-job accidents. The appendices are also very useful. In addition to listing resources for further information and assistance, they contain sample forms and policies.
W. J. Hankins*
* Ms. Hankins has a B.S. from the University of Massachusetts and an M.B.A. from Rivier College. She also has extensive experience in dealing with private and public sector employment issues. She is a second year student at Franklin Pierce Law Center.
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Anne Tramposh, Avoiding the Cracks: A Guide to the Workers' Compensation System (Greenwood Press 1991) [216 pp.] Appendices, bibliography, glossary, index, preface. LC-90-21171; ISBN 0-275-93650-3. [$39.95 cloth, Box 5007, Westport CT 06881.]
The main purpose of this book is to advise injured workers of ways to get necessary infomation. For example, one appendix sets out the basic provisions of workers' compensation systems and addresses of administrators in each state. Others list associations providing assistance to disabled individuals and information on specific injuries. Questions to ask and plans for setting goals and courses of action are presented. Workers are given the tools needed to analyze their situation and start looking for new employment, if necessary. Workers who can benefit most are those who have not yet been injured or have only recently suffered injury. It provides little help for those desiring to climb back up through the cracks.
Others, particularly human resource managers, will also find the book useful for its overview of the workers' compensation system and its problems. Employers, for example, often expect insurance claims adjusters to inform them of problems as they develop with individual cases. But Tramposh points out that claims adjusters do not generally regard themselves as having an obligation to advise employers, only to process claims. Having made this observation, however, the author neglects to expand upon the possible ramifications of such a misunderstanding and ways to avoid it.
The point nevertheless serves to highlight the main problem the author sees in the system - a lack of communication resulting from the large number of players and a large amount of mutual distrust. In supporting her thesis, the book analyzes the roles of injured workers, medical providers, insurance claims adjusters, employers and others in terms of their need for effective communication.
While Tramposh recognizes that lawyers are sometimes needed and points our circumstances in which it is appropriate to hire one, she cautions against being too quick to do so. Once a lawyer is involved, other players may become less open and may not be able to talk directly with the injured worker, thus contributing to communication problems. Given that 97% of workers' compensation cases are resolved without an attorney and that the system was developed to avoid the legal system, there is merit to her position. Yet, there is little point in an injured party's contacting an attorney, e.g., after settling a claim for less than it is ultimately worth. She seems not to realize that an injured worker may consult an attorney prior to deciding whether to prosecute the case pro se. For some of the people who turn out in the 3% of claimants who need an attorney, this may prove to be the main shortcoming of the book.
Allan M. Wheatcraft*
* Mr. Wheatcraft has a B.S. in chemical engineering from the University of Virginia and experience in the polymer industry. He is in his second year at Franklin Pierce Law Center.
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Valuing Health Risks, Costs, and Benefits for Environmental Decision Making. (P. Brett Hammond & Rob Coppock, eds., National Academy Press 1990) [231 pp.] Appendix, executive summary, notes, preface. LC-89-64210; ISBN 0-309-04195-3. [$20.00, $24.00 export. 2101 Constitution Ave., NW, Washington DC 20418.]
The work was commissioned by the Environmental Protection Agency (EPA), but the product seems no more limited in applicability than the first (commissioned by the Food and Drug Administration). The goal was to help agencies deal with being between a rock and a hard place - with, e.g., legislation (or general political sentiment) appearing to mandate action without regard to cost and the Office of Management and Budget calling for economic analysis under Executive Order 12,291 (1981). A committee was formed in 1986 and subsequently commissioned papers. In June 1987, a two day conference was held, and those papers and an EPA case study helped to focus the discussion.
The first of eight chapters is a committee introduction, and the last is its summary of conference discussions, conclusions and recommendations. The remainder of the book consists of revised individual conference presentations and the case study (an appendix), written predominantly by economists.
The basic tension is illustrated, at 16, by Milton Russell. There, he briefly discusses what he characterizes as a "rational" WWII decision to have British convoys cease rescuing victims of submarine attacks and suggests that "smart" decisions may not always be "wise" ones.
Being smart, much less wise, is not easy. The last of four committee conclusions, at 206, is that "...; there is no consensus regarding the use of a specific set of analytical techniques for a specific purpose." This is exacerbated by a lack of consensus on, e.g., the value of human life (and often a studied avoidance of the issue) or methods appropriate for determining it in widely varying circumstances. See, e.g., the first piece in this issue and M. Breitenberg, Need for Economic Information on Standards Used in Regulatory Programs... (U.S. Dept. Commerce 1980).
These and other problems are reflected in the committee's recommendations, at 207-8, namely that (1) benefit-cost analysis be seen as a tool to aid decision making not as itself a decision-making mechanism; (2) more attention be given to nonquantifiable factors; and (3) expanded use be made of:
systematic, consistent formal peer review... to assess appropriateness of assumptions, techniques, and approaches; limitations of data and methods; and the formal or informal treatment of moral and ethical concerns.The book furnishes much food for thought. For example, one may wonder: What "peers" will review treatment of "moral and ethical concerns?" It seems likely to move us closer to dealing with the ultimate challenge: integrating risk (and benefit) assessments and benefit-cost analyses into decisions that everyone finds acceptable, if not agreeable.
T.G.F.
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The Liability Maze: The Impact of Liability Law on Safety and Innovation. (Peter W. Huber & Robert E. Litan, eds., Brookings Inst. 1991) [502 pp.], Foreword, figures, notes, references, tables, index. LC-91-9387 (CIP) ISBN 0-8157-3761-0 (paper); 0-8157-3760-2 (cloth). [$16.95 paperback, $35.95 cloth. 1775 Massachusetts Ave., NW, Washington, DC 20036.]
The book begins with an editors' overview and continues with the work of twenty scholars from several different disciplines, including economists, engineers, lawyers (although the editors attempted, for unstated reasons, to avoid them where possible), physical scientists and physicians. In the second chapter, Gary T. Schwartz provides an excellent general discussion of product liability and medical malpractice from a comparative, international perspective. In the third, W. Kip Viscusi and Michael J. Moore take a broad look at product liability and innovation, but the impact of this analysis is diminished by the blanket assumption that product patents always cover consumer goods and process patents always cover manufacturing processes, neither of which is true.
The remaining ten chapters examine five specific sectors of the economy: private aircraft, automobiles, chemicals, pharmaceuticals, and medical practice. Each sector is the subject of two chapters addressing, first, the effects of tort liability on safety and, second, its effects on innovation. Moreover, with the exception of the chemical industry, each pair is followed by the comments of another writer. The result is quite even-handed. For example, John Graham takes a look at whether tort litigation has motivated companies to produce safer cars, concluding that factors such as unfavorable media attention and government regulation get most of the credit. Then, Murray Mackay argues that "strict liability has had a negative influence on [automobile design] innovation." In following comments, Robert Crandall concludes that Mackay's approach is more useful for formulating hypotheses than for testing them and that Graham may not have given enough credit to the effect of tort litigation in, e.g., generating media attention.
From all of this, Huber and Litan find little solid evidence but conclude that what little there is fails to support the proposition that tort liability deters unsafe behavior. (Nor does it support the converse, raising the issue of who has the burden of proof.) They find the effects on innovation to be more substantial but inconsistent. Not surprisingly, they recommend more research while acknowledging serious difficulties; e.g., comparative international studies are complicated by significant procedural differences between domestic and foreign litigation, and comparative domestic studies are difficult when few products are sold only within a single state's jurisdiction.
Lack of data, however, does not deter them from recommending that: (1) as suggested by Graham, attempts be made to reward good, rather than punish bad, behavior; (2) more be done to reduce uncertainty in the tort system; (3) risk-utility calculus be applied to tort law itself; and (4) the federal government become more aggressive in collecting and publishing safety-related information. It is hard to disagree in principle, but each suffers from lack of specificity.
That aside, the editors and publisher are to be commended for undertaking this project and for assembling a set of papers that should be regarded as "must" reading for any person interested in the U.S. tort system.
T.G.F..*
* I appreciate Allan Wheatcraft's first draft of this review.