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Demand for impairment training high as employers prep for marijuana law

Posted On: Aug. 2, 2017 7:11 AM CST

Demand for impairment training high as employers prep for marijuana law

Dilated pupils, red eyes, anxiety and paranoia are some of the signs employers in Maine are being told to watch for in the state Department of Labor’s “impairment detection training” as Maine grapples with balancing anti-discrimination provisions in the recreational marijuana law with its mission to maintain safe workplaces.

“There is a lot of demand for this class,” said Mark Dawson, Augusta, Maine-based supervisor of research and statistics for the department’s Bureau of Labor Standards, adding that he and his colleagues are preparing for the new normal in drug-free workplace practices in the state.

The department began offering the training this year as the state prepares to implement its recreational marijuana law in 2018, the Maine Department of Labor announced in late July. It’s a six-hour, one-day course that has already seen as many as 50 managers and employers in the four classes offered so far this year, Mr. Dawson said. Two more classes have been scheduled.

The rush to understand impairment without the help of a drug test comes from a section of the state law on recreational marijuana, said Julie Rabinowitz, the department’s Augusta, Maine-based director of policy, operations and communication.

Section 2454 says a “school, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside of the school's, employer's or landlord's property.”

“When we reviewed this with legal counsel they indicated to us that if an applicant tests positive, this would prevent you from refusing to hire that individual,” said Ms. Rabinowitz. “We would recommend that employer not screen for marijuana because it might cause a problem.”

Meanwhile, the Department of Labor told employers to continue drug screening of employees until the law goes into effect in February 2018.

However, if section 2454 is not amended or omitted, screening for marijuana use will violate the state’s regulations protecting those who wish to use marijuana recreationally outside of the workplace, according to Ms. Rabinowitz.

At issue is that marijuana, unlike other drugs or alcohol, stays in a person’s system for weeks at a time, according to medical experts.

Mark Walls, Chicago-based vice president of communication and strategic analysis, for Safety National, said marijuana is “causing a big mess” for states.

Maine’s announcement on impairment training came one week after the Massachusetts Supreme Judicial Court ruled that Irvine, California-based Advantage Sales and Marketing L.L.C. can be sued for discrimination after firing one of its workers who testing positive for marijuana in a pre-employment drug screening. Cristina Barbuto was prescribed medical marijuana to treat her lack of appetite caused by Crohn’s Disease, according to legal documents.

“Beyond what’s going on in Maine and elsewhere, this whole movement that we are seeing toward legalization of marijuana for recreational purposes is a big concern for workplace safety because they have this social movement to legalize marijuana (that) is well ahead of the scientific community’s ability to test for impairment,” said Mr. Walls. “We lack that breathalyzer and it’s a huge concern for employers in every state. All tests out there (are) ‘yes or no’ and (marijuana) stays in your system.”

“You can’t accurately detect intoxication by just looking at someone,” he added.

Maine legalized recreational marijuana in 2016, with the law going into effect this year but enforcement or the start date was delayed as lawmakers aimed to create guidelines. To date, eight states have passed recreational marijuana laws and 29 states and Washington, D.C., allow the use of medical marijuana.

At odds with state laws on marijuana is the U.S. Food and Drug Administration’s stance on marijuana as an illegal Schedule I drug, meaning it has no medical value per the federal government. Given that, most employers have adhered to the federal law and test their employees for drug use under longtime drug-free workplace policies, but Maine’s law says they can’t.

Ms. Rabinowitz is hoping that the law is revamped or at least better explained.

“The law does not define discriminate; it doesn’t tell you what the penalty would be if you refuse to hire the individual,” she said. “How this is going to be enforced is all very unclear.”

In the meantime, Mr. Dawson said employers statewide are advised to train front-line supervisors on impairment.

“We’re trying to shift the focus away from testing for drugs to checking for impairment before the accident happens,” he said.

The training covers the types of drugs, from depressants to stimulants, and what to look for in an individual. It also covers other issues such as sleep deprivation, which can be mistaken for drug impairment, he said.

Mike Clarkson, a shareholder in the Boston office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., is skeptical of leaving it up to employers to gauge impairment on sight.

“Whoever can invent the marijuana breathalyzer is going to be a very rich person,” he said.