AUGUSTA — Maine employers would have new powers to test and discipline employees for drug or alcohol use on the job under a sweeping overhaul of workplace drug-testing law introduced Wednesday by Republican lawmakers and backed by the administration of Gov. Paul LePage.
The bill’s sponsor, Sen. Amy Volk, R-Scarborough, and an official from the state Department of Labor told a legislative committee that the drug testing law hasn’t been significantly revised in 30 years, and that employers are facing new challenges to maintain workplace safety as restrictions against marijuana use are loosening.
But critics in the labor movement, and some Democratic lawmakers, said the bill goes too far by reducing worker involvement in developing policy and by eliminating requirements for companies to provide employee assistance programs.
“Given the nature and the extent of the opiate crisis, I don’t think eliminating an employee assistance program where employers and employees jointly bear the cost of treatment makes any sense at all,” said Sen. Shenna Bellows, D-Manchester.
Volk’s bill, before the Legislature’s Labor, Commerce, Research and Economic Development Committee, would make it easier for an employer to look for substance-induced impairment in workers by removing current probable-cause requirements, as well as allowing for a drug test after a single workplace mishap or other evidence of impairment.
Although Maine employers frequently require pre-employment drug screening, most do not have post-employment testing unless they are required to do so by the federal government, as is the case for those holding a commercial driver’s license.
CLARIFYING WORKPLACE SITUATIONS
Volk told a story of three workers at a packaging plant co-owned by her husband who lost their jobs after a bong – a water pipe used for smoking marijuana – was discovered at the plant in 2016. That was before Mainers voted to legalize recreational marijuana use, which has prompted increased concern from employers who worry about the safety of their workers and potential lawsuits.
“If they had caused an accident, who would be responsible for that accident?” Volk asked. “We all know marijuana slows down your reflexes, your ability to think quickly on the job.”
Volk, the assistant Senate majority leader, said that when the packaging plant workers were confronted, they admitted to smoking marijuana, but said they didn’t see it as a problem because they were on a break.
Under the voter-approved marijuana legalization law, Maine employees are protected from workplace discipline based on their off-hours marijuana use. The Legislature put most of that law, including the workplace protections, on hold shortly after the referendum to give lawmakers time to establish a regulatory framework and licensing system, but that moratorium expires Thursday.
Lawmakers are considering a moratorium extension. Although retail sales can’t begin without a licensing system, the other parts of the law that had been put on hold will go into effect unless the moratorium is continued or new legislation is adopted.
The anti-discrimination provisions prohibit businesses from refusing to employ or penalizing any adult employee based on consumption of marijuana off the employer’s property. It allows employers to prohibit use and possession in the workplace and to discipline employees who are impaired by marijuana.
The law would allow employers to use drug tests given to federal employees, although it doesn’t address how the tests would determine impairment because the active ingredient in marijuana can be detected in the body days or even weeks after the drug has been used.
EMPLOYER POLICIES RECOMMENDED
Attorney Richard Moon told a room full of employers at a Portland conference last week that drug tests alone will not be enough to prove impairment; they will need to establish a policy that assesses impairment and spells out the consequences for being impaired on the job.
The only exceptions to these protections are employers who receive federal funds or contracts, or those with safety-sensitive positions, Moon said.
Nina McLaughlin, the Maine Department of Labor’s director of policy and legislative affairs, also testified for the drug-testing overhaul bill Wednesday.
She said allowing a drug test after a single accident would align state law with federal law. She also noted that some employers have workers, such as truck drivers, who are held to federal standards, while other workers are not.
The bill would allow testing by businesses with 10 or more employees, lower than the current threshold of 50 or more employees. It also would eliminate the requirement that an employee testing committee be formed before an employer institutes any random or arbitrary testing policy.
In addition, the bill would eliminate a requirement that companies with 20 or more employees who require drug testing also have in place so-called “employee assistance programs,” or EAPs.
“This revision would make the EAP optional,” McLaughlin said. “By making the EAP optional, business owners would have more freedom about how they want to channel their resources.”
The bill also would drop a requirement that employers cover half of the out-of-pocket costs of substance use disorder treatment not covered by an employee’s health insurance – current law requires employers and employees to split those costs. In addition, the bill would reduce, from six months to 12 weeks, the time that workers who misuse substances are given to seek treatment. McLaughlin said that change aligns with federal family medical leave laws.
Opponents of the changes, including some of the state’s largest labor unions, said the bill would erode worker rights while taking away tools used to get workers to treatment when they need it.
Bellows, the Democratic lawmaker, said she heard no compelling testimony that changes were needed, and that there was no evidence of mounting problems in the workplace because of marijuana use.
INDIVIDUAL GUIDELINES, OR STATEWIDE?
Adam Goode, a lobbyist for the Maine AFL-CIO, said eliminating employee assistance plans would be like a school getting rid of a student’s guidance counselor when the student was in crisis.
“We believe the current statute strikes an appropriate balance,” Goode said.
Other committee members acknowledged employer concerns, while noting that there is no reliable test now to detect marijuana impairment, unlike the blood testing used to confirm impairment from alcohol.
But Dan Riley, a lobbyist for the Retail Lumber Dealers Association of Maine, said employers need a uniform policy for all their workers. He said lumber dealers employ forklift drivers who are not subject to the same federal laws addressing impairment as those who hold a commercial driver’s license, yet the work could be equally dangerous.
“Having the ability to cover all the employees that deal with heavy equipment under a uniform policy is something the retail lumber yards of this state are really, really interested in pursuing,” Riley said.
Others who offered testimony urged lawmakers to allow companies with their own existing impairment screening programs to keep them and not prescribe a mandatory process for all workplaces.
TESTING OF WORKERS WITH DISABILITIES
Amy Sneirson, executive director of the Maine Human Rights Commission, warned against creating law that could lead to discrimination against a worker with disabilities, who might exhibit impairment-like behaviors that could cause them to be subjected to invasive testing.
Sneirson also cautioned that the proposed law could conflict with the Maine Human Rights Act if it allows an employer who believes a worker is impaired for any reason to test for drugs. Sneirson said the bill should include a provision that allows an employee to engage with an employer about their disability before any test to detect substance use or impairment.
The committee will take up the bill again during a work session at 1 p.m. on Feb. 8, when it may amend the bill and vote on its position in sending it to the full Legislature.
Portland Press Herald Staff Writer Penelope Overton contributed to this report.
A bill sponsored by Sen. Amy Volk, R-Scarborough – shown here reading testimony in a June 7, 2017, legislative debate – would allow for a drug test after a single workplace mishap or other evidence of worker impairment. (Joe Phelan/Portland Press Herald)