DEVELOPING AND IMPLEMENTING AN EFFECTIVE ALCOHOL AND DRUG POLICY
BARBARA BUTLER & ASSOCIATES INC.

These days, many Canadian organizations are concerned about the appropriate way to deal with employees who may be impaired on the job. Many have provided assistance programs to help those with current or emerging alcohol or drug problem. Some have work rules around alcohol and drug use, while others may have some reference to "fitness for duty" requirements in a Health and Safety policy. However, many employers are recognizing this may not be enough.

The impact of alcohol and other drug use in conjunction with work can be significant in terms of employee health, workplace and public safety, and operational productivity. Recognizing this, Canadian companies in all industry sectors are developing comprehensive alcohol and drug policies, or reviewing and upgrading their existing policies as an important step in preventing or dealing with workplace incidents. To this end, many recognize the importance of setting up a mechanism to provide counselling, assessment, assistance and ongoing support for recovery for employees who may have a problem. However, they are equally concerned about the liabilities associated with not taking appropriate action to prevent incidents and accidents. Both prevention/assistance and deterrence initiatives can be effectively addressed through a balanced approach and a comprehensive workplace policy.

To help employers understand the key issues, this paper:

  • outlines some of the recent trends in alcohol and drug use patterns in Canada,
  • outlines some of the trends in the development of workplace alcohol and drug policies,
  • highlights the key areas these policies should address,
  • examines issues and considerations associated with the introduction of testing programs as an investigation tool in the context of a workplace alcohol and drug policy, and
  • provides guidance on policy implementation.

Impacts of Alcohol and Drugs in the Workplace

Recent use Patterns: The Canadian Tobacco, Alcohol and Drugs Survey conducted in 2013 provides the most recent survey information on alcohol and drug use patterns for Canadian adults (age 15 or older)1. The following highlights are of interest:

  • Alcohol is by far the most prevalent substance used by Canadian adults; the most recent national survey found:
  • 75.9% of Canadian adults reported being current drinkers (past year)
  • males are more likely to be current drinkers, to exceed the low risk drinking guidelines and report harms from drinking than females; and
  • current alcohol use in Quebec is the highest in Canada (82.8%) followed by Saskatchewan (75.5%), while current drinkers in Newfoundland and Labrador are most likely to exceed the low risk drinking guidelines than in any other province.
  • Marijuana continues to be the illicit drug of choice. The same survey found:
  • 10.6% of Canadians report being current marijuana users;
  • males (13.9%) continue to be more likely than females (7.4%) to be current users;
  • 48.6% of those age 15-24 report being current users, as do 8% of those 25+;
  • 11.3% of Canadians reported using any drug 2 (including pharmaceuticals to get high) in the past year, with males more likely (14.9%) than females (7.9%);
  • 19.9% of current users reported harm to self as a result of use;
  • reported current cannabis use in BC is the highest in Canada at 13.3% and reported use of any drug was highest at 13.7%.

To put the Canadian situation into perspective, the International Narcotics Control Board's 2011 report (March 2012) confirmed prescription drug abuse is a significant problem in the U.S., Canada, and Mexico. The annual amount of cocaine entering Canada from the U.S. has more than doubled in the last five years. Most of the cannabis produced in Canada is consumed within the country, although some is sent to the U.S. market.

Canada remains a significant manufacturer of ecstasy which, although primarily intended for domestic use, is increasingly being trafficked to the United States, as well as expanding markets such as Australia, Japan and New Zealand; the market is now expanding to Asia, the Caribbean and Mexico. 2010 crime statics show the overall crime rate down by 5% from 2009 but drug-related crime increased by 10%.

Impacts on Performance: Psychoactive drugs, including alcohol, act on the central nervous system, altering the way a person thinks, feels, and acts. Substances of concern in the workplace are those that prevent an employee from performing his or her job safely and productively. The use of some of these substances is socially and legally acceptable, while others are illegal.

Their impacts on motor coordination, perceptual abilities, and physical and mental capacity can all be of concern in a workplace setting. This is why employers need to be aware of potential impacts and set clear standards and expectations to minimize the risk that alcohol and other drug use will put individuals at risk - for themselves, co-workers and the general public.

Individuals are affected by drugs in different ways and to varying degrees. Many variables influence what these impacts will be, including age, weight, sex, state of health, level of fatigue, and experience and tolerance to the substance's effects. Even at low levels, drug and alcohol use can cause performance impairment. Potential impacts on job skill performance include a decrease in accuracy, efficiency, productivity, worker safety and job satisfaction. At higher doses, these effects will be more significant. Withdrawal and hangover effects, as well as chronic use can lead to increased tolerance, and have also been shown to affect an individual's ability to perform. As more complex demands are made on individuals - both in their work and beyond - the behavioural impact of acute and chronic drug use becomes increasingly important.

  • Alcohol use in conjunction with work can create safety problems, and affect productivity in all jobs:
    • individuals will be unfit for duty and place co-workers and others at increased risk; and
    • there may be increases in accidents, absenteeism and tardiness, and problems associated with unreliability and declining performance.

    Any ingestion of alcohol can result in a decline in the body's ability to perform to its full potential. The general performance impacts associated with each blood alcohol content (BAC) range are:

    • less than .015 BAC: performance of cognitive tasks can begin to decrease;
    • from .015 - .04 BAC: sensory and cognitive performance is reduced, and perception, visual field, tracking, information processing and performance of multiple tasks are affected ; and
    • at blood alcohol levels higher than .04, the probability of causing an accident is increased, all skills almost universally seriously impaired and psychomotor skills (coordination, balance, visual acuity) are impaired for most individuals.
  • Marijuana use contributes to:
    • decreased attention and impairment in ability to divide attention between two tasks;
    • adverse effects on short-term memory and hindered long term memory;
    • reduction in learning ability and increased time needed to make decisions;
    • impaired psychomotor performance, as demonstrated repeatedly in simulated driving and flying experiments; and
    • hang-over effects from lower dose THC levels of 3-4 hours on routine tasks up to 24 hours on more complex tasks;

    Studies of alcohol and cannabis in combination show a dose-related impairment on performance of specific tasks, and that the effect in combination is additive. Experts have concluded that marijuana is a real but secondary (to alcohol) safety risk, but "any situation where safety depends on alertness and capability of control of man-machine interactions precludes the use of marijuana".

  • Other drugs, including both illicit drugs and prescribed or over-the-counter medications, have immediate and long term impacts on performance. For example:
    • the overestimation of one's abilities occurs even at low doses of cocaine, dangerously increasing the potential for risk taking;
    • opiates can interfere with work performance due to mood changes, decreased activity, drowsiness and slowed motor function;
    • impacts on sensation and perception make the operation of motor vehicles and other machinery dangerous after hallucinogen use;
    • amphetamine usage at low doses has similar effects to other stimulants like cocaine, and can cause chronic sleep problems, anxiety and tension, depression, irritability and appetite suppression; and
    • stimulant use can increase a subject's risk-taking and can impair judgment and decision making.

Although over-the-counter and prescription drugs are used primarily for their beneficial effects, the therapeutic action of the drug may occasionally create an undesirable effect. Errors in dosage may magnify this, and drugs taken in combination may lead to further problems. These therapeutic effects or adverse reactions could also interfere with job performance and create a safety hazard. This is why many employers ask those in higher risk positions to investigate with their doctor or pharmacist whether a drug they are taking can impact the ability to do their job safely, and to report any need for modified duties as advised by the professional.

Various studies have credited alcohol and other drug use with contributing to increased turnover, accidents, absenteeism, workers compensation, sick benefits and insurance claims, loss of productivity and human potential, low quality products and services, theft and trafficking. A key concern is increased corporate liability regarding employee and public safety and environmental impacts resulting from accidents associated with alcohol or other drug use.

Implications for Policy Decisions

Recognizing this, employers must look at the impact alcohol and other drug use could have on their own specific operations, and then determine how best to minimize that impact - particularly where safety may be affected. Statistics from the most recent national and provincial surveys can provide a picture of likely patterns in any given workplace. Due diligence in dealing with potential safety risk requires using effective and reliable investigative tools as part of a broader approach to prevention.

Employers must also find a balance between providing opportunities for rehabilitation for those who may have a problem, and triggering discipline for someone who has violated the rules. Many employers in higher risk industries have decided to take a proactive rather than reactive approach to this issue.

Legal Liabilities and Responsibilities

A variety of potential legal issues may be best addressed through consistent implementation of a clear and reasonable policy; this can include addressing the liabilities associated with the actions of impaired employees at work, due diligence responsibility around workplace safety, actions in response to possession or trafficking of illicit drugs, and the duty to accommodate those with a chemical dependency in accordance with human rights provisions. In fact, a recent court decision confirmed that "human rights legislation fits within the entire legal framework within which enterprises must function…and… that framework includes other standards that also reflect deep values of the community such as those established by workers' compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence."

The Court stated that this fuller legal framework must be considered when a company's occupational requirements are being assessed.

  • Occupational Health and Safety Legislation places the onus on employers to ensure the health, safety and welfare of employees; employers must prove diligence in minimizing or eliminating all potential safety risks, including those associated with independent contractors. Organizations can be liable for any negligent or wrongful acts committed by an employee acting within the scope or course of employment, which could include negligence in allowing an alcohol or drug impaired employee on the worksite or on a public highway once declared unfit to work, and negligence when returning someone to a risk-sensitive job after treatment or after a policy violation where sufficient monitoring mechanisms are not in place and a substance-related incident results. The company policy should have provisions to address these responsibilities.
  • The courts have clarified that occupational health and safety responsibilities can extend to contracted workers and sub-contractors. As a result, increasingly companies are not only introducing policies for employees, they are also introducing requirements for contractors (generally by issuing a ‘Statement of Expectations for Contractors').
  • Reinforcing these safety obligations, Bill C45 which has been enacted in law establishes rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives. There is a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public. There is no change in the current law regarding personal liability of directors, officers and employees; the new Act deals with the criminal liability of organizations.
  • In essence, OHS criminal negligence is established where the organization or individual, in doing anything or in omitting to do anything, that is its/his/her legal duty to do, shows wanton or reckless disregard for the lives or safety of others. There have been no cases at this point, but it is expected that this legislation will impact how organizations deal with substance abuse issues.
  • Driver Liability makes the owner of a vehicle accountable for any injuries or damages caused by a person driving the vehicle with the owner's consent. This is why the policy standards must apply when someone is operating a company vehicle and/or operating a vehicle on behalf of the company. It is also why the policy should address reporting, and the consequences of receiving, an impaired driving charge in these situations.
  • Hosting Liabilities associated with the provision of alcohol to others or hosting alcohol-related events can include the provider of the alcohol, the occupier of the premises where the problem occurred, and the sponsor of the event. Responsibilities can extend to injuries the person who drank may receive, and to any third party they may injure. This is why companies should have clear rules around both social and business hosting where alcohol use may be involved. There should also be procedures in place to minimize the possibility that someone may leave in a state that could result in injury to themselves or a third party.
  • Federal and Provincial Human Rights Legislation prohibits discrimination on the basis of a disability. Current or former dependence on drugs or alcohol is considered a disability under the federal Act, and will likely be interpreted in the same manner at the provincial level. Issues around reasonable accommodation, and establishing a bona fide occupational requirement (bfor) for treating someone differently need to be addressed. Prevention initiatives including access to assessment, assistance, treatment, and follow-up services, as well as modifying hours or duties in certain circumstances would all contribute to accommodation responsibilities.
  • Employers can perform searches of company property, including those that lead to the identification of a banned substance in the workplace, but they should be conducted with caution. There is no absolute right of an employer to search personal effects, and the ability to do so will vary with each case. Generally companies need to give adequate notice that they intend on conducting searches (through their policy statement), and the circumstances under which they will be conducted.

All of these issues come into play in the development and the implementation of a company policy.

Policy Development Process

There are a number of key areas that policies must address, and several difficult decisions that need to be tackled. The first step is to establish a background to the specific policy decisions that follow. There are some valid reasons for taking a "two step" process. The courts/arbitrators/human rights tribunals have found the reasons for establishing the policy - the thought patterns that go behind it - are just as important as the policy components themselves (see #2 below). In two recent decisions, the Supreme Court of Canada confirmed that to make what may be considered a discriminatory work standard acceptable (e.g. no alcohol use during the day, or individuals are subject to testing under certain circumstances, etc.), companies must meet the following tests:

  1. The employer must show the standard was adopted for a purpose rationally connected to performance of the job.
  2. The employer must establish that the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.
  3. The employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose; it must demonstrate it is impossible to accommodate individual employees without imposing undue hardship on the employer.

The Court's direction has been used in cases involving alcohol and drug policies, including the Ontario Court of Appeal decision in the Imperial Oil policy, the federal Human Rights Tribunal decision in Autocar Connaisseur, and a number of arbitration cases.

Although the ultimate decision on a company policy and its implementation is normally made by Senior Management, the owners, or the Board of Directors depending on how the organization is structured, an important step in the process is to obtain input from company representatives who have had a chance to understand and debate the issues before making their recommendations. This is why most companies use a consultative process to arrive at their ultimate decision. For example:

  • some companies appoint a core group of employees to develop a draft, and then review and modify it as a result of discussions with key stakeholders, including the union(s) and/or OH & S Committees;
  • others may set up a larger committee with broader representation including, for example, human resources, occupational health, the union(s), field and office supervisors, field and head office employees, public affairs, safety, and/or any other appropriate interested group.

In both approaches, though, it must be clear that the task at hand is to recommend an appropriate course of action for the organization based on a better understanding of the issues, assessment of need, and identification of overall objectives.

Consistent with the Supreme Court's direction, it is strongly recommended that in establishing company policy, careful thought be put to the following matters:

  • identify all current practices, policies and services, including provisions in OH & S manuals, the collective agreement, employee benefit programs etc.
  • ensure the policy builds from this base;
  • identify gaps or missing pieces;
  • determine what can be improved and ensure the policy addresses this;
  • assess the degree of risk in the operations, identify any past problems or incidents;
  • look at external factors including recent legal decisions, trends and practices of others in the industry, general information on use patterns, impacts and effective solutions;
  • identify likely stakeholder expectations and how conflicting expectations will be handled; and
  • set out overall objectives for the program, which will be a foundation for its implementation.

Key Policy Components

There is no 'typical' policy or program; if the steps above are followed, each program will reflect the unique corporate culture and values of the company, the fundamental aspects of the business it is in, the regulatory environment within which it must operate, and most important, the specific program needs. However, there are a number of key areas that policies must address, and several difficult decisions that need to be tackled.

There are four cornerstones that underlie the various policy details:

  1. Awareness and education programs, both at "roll out" and ongoing;
  2. Access to assistance, through a contracted employee assistance program, or as appropriate, community resources;
  3. Training for supervisors on their role under the policy, including both performance management for early identification of potential problems, and appropriate steps to take to investigate a possible policy violation; and
  4. A variety of tools to investigate if someone may be in violation of the policy.

Each of these components should be included in any company program. The policy statement itself should:

  • be written down and broadly communicated to all employees;
  • provide clear direction on the objective and application (who is covered and under what circumstances);
  • outline the applicable rules and responsibilities, including any higher standards for risk- or safety-sensitive positions;
  • clarify avenues to access assistance, reinforce the importance of obtaining assistance for a problem before it impacts the workplace, and outline conditions for return to duty, including aftercare provisions on a case by case basis;
  • set out the procedures which will be followed to investigate a possible policy violation, (e.g. investigation and escort procedures if someone is unfit for work, accident investigation, impaired driving situations, searches, alcohol and drug testing); and
  • set out consequences for a policy violation and any conditions for continued employment, including provisions for a Substance Abuse Professional assessment to determine whether the individual has a problem in need of accommodation.

Any provisions for social and business hosting should be identified either in the policy or as a stand-alone procedure and should ensure proper controls are in place to minimize risk associated with use of alcohol at the event.

Canadian unions, human rights bodies, privacy commissions and civil liberties organizations have not questioned an employer's obligation to provide a safe workplace and the importance of setting out clear and well-communicated policies to this end. Their major concerns have focused on the investigative tools used to ensure compliance, the consequences for a violation, and ensuring those with a problem receive appropriate accommodation.

Investigation Tools

Once an organization has set out specific rules and expectations, they need to activate investigative tools to help ensure those requirements are being met. There are a variety of options to consider including in a policy beyond alcohol and drug testing (addressed below), including:

  • Performance Management Procedures: Supervisors should be trained to monitor performance (objectively observe, document observations) and hold a meeting with an employee exhibiting declining performance in order to get agreement for corrective action; the meeting itself may result in the individual seeking help for a personal problem impacting their job, including a problem with alcohol or other drugs.
  • Unfit for Duty Situations: Supervisors should also be trained to deal with situations where an employee, contract worker or visitor appears to be unfit in the workplace. This should include appropriate escort procedures, but in the case of employees, and often contract workers, it would also include steps to investigate and take action on the findings, which could include transport to a hospital or clinic for medical attention, modified duties or removal from duty, or an alcohol and drug test depending on the situation.
  • Impaired Driving: If reporting and remaining fit for duty is a requirement, it should extend to any situation when an employee operates a vehicle in the course of work. They should be required to report receipt of an impaired driving charge, and an investigation would be undertaken into the circumstances (recognizing the associated liabilities should an incident have occurred).
  • Searches: If possession of certain substances is banned, the company or organization should reserve the right to investigate situations where there are grounds to believe someone is in violation of that rule, consistent with legal precedence on searches.

Trends in Accommodation: The Substance Abuse Professional

Assessment, counseling, and treatment services have been available through a variety of private and public agencies across the country, although availability - particularly treatment beds - varies with the funding support they are able to obtain. Employee Assistance Programs (EAPs), either internally provided or externally contracted, have also been available for many years, but were usually offered as an employee benefit in larger organizations.

As more and more companies of all sizes have been putting in place policies in recent years, they have recognized the need to provide broad brush, confidential assistance programs.

Most EAPs provide access to services provided by a variety of professionals including psychologists, social workers, and addiction specialists. Although not limited to addictions, they can be one of the most effective ways to deal with alcohol and other drug problems in the workplace. An effective EAP provides confidential assistance with problems that interfere with an employee's ability to function on the job efficiently and safely through prevention, identification, assessment and referral, and follow-up services. It is normally accessed on a voluntary basis, although suggested referrals during the performance management process may also be triggered.

Although there have been professionals working in the field of substance abuse for many years, the concept of a "Substance Abuse Professional", or SAP, has taken on a new meaning when it comes to workplace policies in recent years. SAP services are entirely separate and different from the counselling services provided by an EAP. A SAP referral is normally triggered under a company alcohol and drug policy when an employee violates stated rules regarding alcohol or drug use (e.g. use on the job, a positive test result, etc.) and is subject to discipline. The SAP must have knowledge of and clinical experience in the diagnosis and treatment of alcohol and drug related disorders. Because of human rights obligations to accommodate an individual with a drug or alcohol dependency, the SAP's role is to:

  • assess whether the individual has a problem;
  • make recommendations regarding education and treatment;
  • confirm that the recommended program had been or was being followed; and
  • recommend a return-to-duty monitoring program to support someone's continued recovery and return to work, which often includes unannounced testing, particularly in higher risk situations.

Increasingly, employers are not waiting until a policy violation to trigger a SAP referral. Because of the greater obligation to address potential safety risk, increasingly employers are making directed referrals for a SAP assessment in a performance management situation where the employee specifically says they may have a problem with alcohol or other drugs. In this case, and especially in situations where the individual's work is risk- or safety-sensitive, employers can not ignore the situation. This is an opportunity to trigger an assessment and assistance for their problem. Failure to do so could present a safety risk to the individual and those they work with.

Introduction of Alcohol and Drug Testing

Many Canadian employers in other parts of the country are questioning whether they should introduce alcohol and drug testing programs for their employees and contract workers. Faced with increasing responsibilities for the actions of their employees and those they contract with, and aware of current alcohol and drug use patterns employers are looking at testing as a way to deter use and identify those who may be placing their co-workers and others at risk. As a result, a number of employers, particularly those in higher risk industries, are choosing to include testing in certain circumstances as part of their company policy.

However, they can not simply implement a testing program and assume it will be found acceptable by employees or the courts. Any testing that is introduced should be within the context of the company's overall approach to health and safety, and its specific requirements with respect to alcohol and drug issues.

Therefore, companies need to make a careful assessment of whether alcohol and drug testing should or should not be included in the overall policy - in other words, be able to explain how it contributes to the company's overall safety objectives. The introduction of testing in any workplace is a controversial decision, and should be made with full understanding of the role it can play, and consideration of whether it is justified for certain employee groups. Decisions are needed on who to test, under what circumstances, for what substances, using what technology, and what will be the consequence for failing a test, or refusing to be tested.

Circumstances for testing can include:

  • pre-employment as a final condition of hire;
  • pre-assignment/certification (e.g. to a risk- or safety-sensitive position);
  • prior to assignment to a specific task or job site; (e.g. site access)
  • after a significant accident or incident as part of a full investigation;
  • with reasonable cause (to believe someone is unfit due to alcohol or drug use) as part of an investigation;
  • on a purely random basis at a specified rate per year;
  • as a condition of return to duty after treatment or a policy violation;
  • as a condition of continued employment after a policy violation (e.g. last chance agreement);
  • as part of a monitoring agreement after treatment.

Some companies may conclude testing will not play a role in the implementation of their policy. Others may conclude testing should be triggered for all employees under certain circumstances, or for certain groups of employees (e.g. high risk) under other circumstances. Each policy must be absolutely clear on when testing applies, and the procedures which will be used, as well as the justification for its introduction.

More information on testing technology and the legal situation are found in additional resources on this web site.

IMPLEMENTATION AND COMMUNICATIONS

Once policy decisions have been made, planning for implementation needs to take place. A number of tasks need to be addressed before the policy is announced, and its implementation starts. These include:

  • designating someone to be in charge of the implementation program;
  • identifying a specific Program Administrator if there is a testing component;
  • identifying all positions within the safety/risk-sensitive job categories as required;
  • notifying contractors of policy expectations;
  • making any changes in the benefits or insurance coverage that may result from the policy decisions;
  • contracting for external services where required (e.g. testing, Employee Assistance Program, training, Substance Abuse Professionals);
  • advising the existing EAP of the new policy and any implications for their services;
  • consulting legal counsel; and
  • finalizing the communications strategy.

When contracting for external services, companies/organizations should be extremely clear in assessing and identifying their program needs, so that they do not end up with products, or a long term service delivery contract, that does not meet those specific requirements, or provide the necessary level of quality in the most cost-effective manner. This is a particular priority when contracting for supervisor training, employee assistance and substance abuse professional services, and any testing component of the program.

A policy is of little value if it is not effectively communicated. In fact, with a subject matter as controversial as an alcohol and drug policy, the way in which the policy is communicated is probably just as important as the message being conveyed. It is crucial that communication is clear and consistent throughout the organization and that the policy be seen to have the support of top management. Companies should develop a communication strategy that ensures everyone that needs to know about the policy and procedures is informed and that identifies the most controversial components, where opposition may lie to them, and a strategy for responding to issues that are raised. Communication about alcohol and drug issues should not end with policy roll-out. Information should be easily accessible to employees on an ongoing basis, and highlighted as appropriate in safety meetings and through other venues.

CONCLUSION

One of the most effective ways to prevent workplace alcohol and drug problems, and to effectively investigate and take corrective action, is by first establishing a clear and comprehensive workplace policy. Each company must decide what will work best in their own environment; there is no model policy. Each program should be tailored to meet the specific needs of each workplace, and should be seen as a reasonable and responsible response to those stated needs. The result should be an appropriate balance between health and safety (due diligence) and respect for individual rights and privacy. This means finding a balance between measures to control or deter use (standards, investigation tools and discipline) and prevention measures (education, training, and employee assistance). Companies need to ensure they keep these considerations in mind as they make their program decisions.


Footnotes

  1. 2013 Canadian Tobacco, Alcohol and Drugs Survey, Health Canada, 2014. http://healthycanadians.gc.ca/science-research-sciences-recherches/data-donnees/ctads-ectad/summary-sommaire-2013-eng.php
  2. Cannabis, cocaine/crack, meth/crystal meth, ecstasy, hallucinogens, salvia, inhalants, heroin; abuse of pain relievers, stimulants; sedatives to get high


Other Articles by Barbara Butler:

WHY SHOULD WE HAVE A POLICY?
DEVELOPING AND IMPLEMENTING AN EFFECTIVE POLICY



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2015