🔒Companies navigate pitfalls of workplace marijuana rules

Maine employers are counting on the Legislature to untangle the hot-button issue of how to deal with workplace drug use and impairment, a concern that has gotten a lot hotter since recreational marijuana use became legal in Maine Jan. 31.

And the solution may be a totally different approach to workplace impairment, given drug testing regulations considered by many employers too restrictive and now nearly impossible with legalization; federal standards that conflict with state ones; and the too-general nature of the recreational marijuana referendum passed in November regarding its relation to employment.

“Everybody's nervous,” says Matt Marks, chief executive officer of Associated General Contractors of Maine. “It's not like anything we've dealt with before.”

State Rep. Teresa Pierce, a co-chair of the Marijuana Implementation Committee, says: “The concern is keeping people safe, [including] users, coworkers, the workplace, the state's highways.”

The Falmouth Democrat says that workplace safety is just one issue her committee is dealing with. The implementation committee, as well as other legislative committees, are hustling to set a wide variety of guidelines related to the law after an emergency measure to delay many of its provisions until next year was passed in January. While that delay doesn't directly relate to employment law, it gives employers some breathing room as far as general marijuana use goes.

A more specific employer-based bill, LD 1222, is still in its initial stages. The bill, sponsored by Rep. Andre Cushing, R-Penobscot, takes previous unsuccessful measures designed to lift some drug-testing restrictions and adds more language addressing how to recognize impairment in the workplace, among other changes.

Employers are taking a wait-and-see approach, and while they wait for specifics from the Legislature, many don't want to discuss the issue of drugs in the workplace or how they're dealing with it.

“We don't have anything to comment on this topic,” says Olga Karagiannis, manager of corporate communications for Sappi North America, which employs about 1,200 in Maine at mills in Skowhegan and Westbrook. A spokesman for Bath Iron Works also declined to comment, while Maine Medical Center, Hannaford Brothers, FairPoint and Cianbro didn't respond to requests for comment.

A complicated subject

Drug testing policy in Maine has long been a difficult topic. Restrictions mean that of 45,000 employers in the state, only 541 have state-approved drug-testing policies, according to Julie Rabinowitz, director of policy, operations and communication at the Maine Department of Labor. Most of those programs are for job applicants. About 200 employers do random testing, which is restricted to businesses with 50 employees or more, and many of those are required to under federal guidelines, with only 86 coming under state law.

Since marijuana can stay in the blood stream for more than a month, depending on use and the user's metabolism, a positive test does not mean the person is impaired. Rabinowitz says that more than 80% of those testing positive for drug use in Maine tested positive for marijuana use in 2016.

In many cases, a positive test can't be grounds for refusing employment, the law passed in November states. But the law also states that legalization doesn't affect the ability of employers to enact and enforce workplace policies restricting marijuana use, or to discipline employers who are under the influence in the workplace.

Rabinowitz told the implementation committee in February that employers now may be in “legal limbo” if they continue applicant tests, and that some employers may be opened up to discrimination charges.

While legislators and others are contacting other states that have legalized recreational marijuana for guidance, Rabinowitz says that's not as helpful as it may seem. For instance, Colorado doesn't have a drug testing policy, instead allowing employers to work with their attorneys to develop drug testing policies appropriate for their business that still adhere to rules regarding health policy, disability and other federal provisions.

“Maine, in contrast to Colorado, has complicated drug testing laws riddled with loopholes, restrictions, thresholds and requirements,” she told the committee.

On top of it, there is no test that determines actual marijuana impairment — tests only show use.

Tim Doyle, vice president at the Maine Motor Transport Association, says alcohol impairment is comparatively easy to measure. “There's no standard for marijuana impairment,” he says.

Most employers who drug test are sticking with the policies they have in place as they wait to see what guidelines the Legislature comes up with, says Marks, whose organization represents about 185 private contractors in the state.

While much employment policy tends to be black and white, “this is a gray area” that conflicts with many employers' policies. He says employers are hoping for clear guidelines on what compliance will look like for both employers and workers.

“They're waiting for it to play out,” he says.

The tangle between drug testing laws and the difficulties of testing “are the biggest challenge at the moment,” says Michael Bourque, senior vice president of external affairs at MEMIC, which provides worker's compensations insurance.

“I hear employers being less concerned with whether or not their employees might use marijuana, but rather whether they will use it in a manner that could impact their work,” Bourque says in an email. “Obviously, employers are concerned when an employee who comes to work impaired by any substance, but marijuana raises concern because there is no reliable test that equates a level of THC with impairment. So, one level in one employee may make them a real risk to their own safety, as well as for fellow employees and even customers, yet that same level might not create impairment in another individual.

“Employers want to know where the guardrails are so that they can act appropriately to keep people safe,” Bourque adds.

Untangling the details of 'impairment'

Most involved in the issue agree that, beyond useable drug testing policy in the state, impairment recognition is the new key to untangling the issue.

The labor department is holding workshops to help employers recognize impairment, Rabinowitz.

Doyle, of the motor transport association, has been training others on impairment recognition for two decades. Most of that was limited to industry employers. “I'm now seeing a lot more interest from outside the industry,” he says.

While many of the thousands of truckers the association represents must comply with federal drug-free regulations and therefore are not affected by legalization, workers for the same employers in safety-sensitive jobs who don't come under federal regulations may now be subject to the new Maine law. His organization represents about 28,000 workers who make their living in the trucking industry. Of those, about 6,500 to 7,000 come under federal drug testing guidelines.

“[For truckers] the issue isn't impairment, it's use,” Doyle says. On the other hand, classifications like mechanic, or heavy equipment operators aren't subject to the same federal regulations and that's where things get murky with the new law, he says. It puts the pressure on employers to prove impairment if they don't want to be considered discriminatory.

Legislators last year attempted to update the state's drug testing policies, which would have, among other things, allowed businesses with 10 employees to use random drug tests, down from 50; eliminate the need for an employee assistance program before testing could be done; allow one incident to be probable cause for dismissal; and expand federal rules to employees who don't come under federal guidelines.

Those opposed to the bill say that it was too sweeping and invaded privacy rights of workers.

“We're trying to take the focus away from drug testing to having employers trained to detect impairment,” says state Rep. Amy Volk, R-Scarborough, a member of the Committee on Labor, Commerce, Research and Economic Development.

Volk says even before recreational marijuana was legal, the issue of other legal drugs — medical marijuana and prescribed opiates — raised questions of impairment and how employers should deal with it. She says that employer education on how to detect impairment will give employers more flexibility than drug testing, for instance, allowing a supervisor to sit down and talk to someone displaying signs of impairment — but who might instead be grappling with other, more everyday issues.

“Maybe they have a baby at home, or were up all night because their teenager was out,” Volk says.

Such training would allow employers to determine if someone simply needs to be sent home for the day, or gives an employee “the opportunity to turn things around.”

Whatever the solution, those on the employment end of things also says that workplace safety is the bottom line.

“We're taking the time to educate ourselves,” Pierce says. She says the goal is to make guidelines as clear as possible. “We're anxious to do it and do it well.”