🔒Marijuana legalization and opioid crisis put employers on high alert

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A combination of the opioid crisis and changes in Maine's marijuana laws are a major reason more Maine employers than ever are drug testing.

The Maine Department of Labor's 2016 Drug Testing Report, released in March, shows that 541 Maine employers, both public and private, have been approved to test for drugs. Of those, 526 are approved for applicant testing, 147 for probable cause testing and 86 for random testing. The report emphasizes that it only includes those employers who come under state drug testing rules — those that come under federal mandatory testing rules, including thousands of truck drivers, weren't included in the survey.

The number of employers who test for drugs has risen steadily from 112 in 1993, the first year the department collected the information. In 2015, 531 employers tested for drugs.

While there isn't one clear reason for the rising number of employers who test for drugs, “we see spikes in the numbers when drugs are in the news more and employers respond to those trends,” says Julie Rabinowitz, director of policy, operations and communication for the Maine Department of Labor. “Certainly the opioid epidemic has people concerned, and now the legalization of marijuana.”

While less than 1% of those tested for drugs in 2016 tested positive for opioids, including heroin, and they represent only 1.9% of all positive tests, the impact of that type of drug has been deeply felt in Maine. Opioids killed 378 Mainers in 2016 and drug abuse and addiction is associated with half of the state's crime, according to law enforcement estimates.

The 2016 numbers show between 4% and 5% of those who take applicant and random drug tests test positive. Of those positive tests, 90.1% in 2016 were for marijuana, up from 83.6% in 2015. Of Maine's 45,000 employers, 526 test applicants for drugs, 86 are approved for random testing and 147 are approved for probable-cause testing. Since some are approved for more than one type of testing, 541 overall are allowed to test for drugs under state law. Some 399 answered the labor department's survey.

As legislators grapple with finding a way to deal with recreational marijuana, not only in the workplace, but in the marketplace, the state's employers are beginning to focus on impairment recognition, rather than drug testing. Employers, legislators and others involved in workplace health issues say that workplace safety is the overriding issue where drug use and abuse is concerned, and the state's complicated drug testing laws make it difficult for many employers to use them effectively.

“With the opioid crisis and now the legalization of marijuana, the potential for people being impaired on the job is increasing, endangering not only the worker taking the drug, but also coworkers and clients,” says Gov. Paul LePage in a news release tied to the report. “Maine must provide employers the appropriate tools to retain valuable workers and help people in recovery [get] back into the workforce, discourage the use of dangerous drugs like opioids, properly regulate marijuana and maintain a safe work environment.”

“We're trying to make it easier for employers,” state Rep. Amy Volk, R-Scarborough, says. She's on the Labor, Commerce, Reasearch and Economic Develoment Committee, which is trying to hammer out legislation that will untangle drug testing policy and focus on impairment recognition in the workplace. She says most of the employers that committee members have discussed the legislation with “are fine with it.”

As it stands, Maine's drug testing law requires employers with more than 20 employees to have an employee assistance program in place that conforms to all the state regulations for such a program, must set up an employee committee, and many other requirements that many smaller employers don't have the staff, time or money for, stakeholders say.

But, Rabinowitz says, the number of employers who drug test is still going up because of a variety of factors, not all related to drugs being in the news. Those issues may be as varied as an employer having drug-related issues in the workplace that didn't exist before, employers that do business in other states that require it, or employers that didn't realize they had to register with the state to test, so now have registered.

Rabinowitz says the numbers have shown over the years that, despite the fact every employer that tests didn't answer the survey, the statistics are consistent with what would be expected overall, particularly for marijuana.

“While there may be small variations, the relative percentages of cannabinoid positives to others seems to be consistent no matter who is or isn't reporting from year to year,” she says.

Manufacturing and trade industries led the way with positive tests, with 5.8% of those tested at 172 businesses testing positive. The lowest number testing positive are in the transportation and public utilities industry, where 2.6% at 23 businesses did — though many of the jobs in those industries don't come under state testing laws, because they adhere to more rigid federally mandated ones.

Other findings in the report:

• 4.8% of job applicants tested positive, out of 19,956 tests

• 54.2% of those tested for probable cause were positive, out of 24 tests

• 4.2% of those randomly tested had a positive reading, out of 1,040.

The overall statistics are consistent for applicant tests, but of probable-cause tests, 53.8% were positive for marijuana-related substances, while 23.1% were positive for amphetamines and 7.7% were positive for opioids. Of those randomly tested, 77.3% were positive for marijuana-related drugs, 6.8% for amphetamines and 2.3% for opioids.

Rabinowitz said that random testing, which is severely restricted and only allowed for employers with 50 or more employees or safety-sensitive positions “may serve as a deterrent to drug use, as compared with probable cause that has much higher positives.”