Colorado Lawmakers Should Consider Impairment Testing As Part of New Cannabis Legislation

Predictive Safety, COO Jeff Sease responds to the article by Alex Burness, The Denver Post, February 17, 2022
Full Article Here: As cannabis use evolves, workplace drug testing should too, Colorado lawmakers say

Colorado lawmakers from both sides of the aisle agree that as the legal status and use of cannabis (marijuana) evolve, workplace drug testing must too.

In the Denver Post article, Burness reports on the agreement of two Colorado lawmakers that the legalization of cannabis (marijuana) occurred before policies were thought out and prepared or any plans were put in place to protect the interests of both employers and employees. Now, new legislation is being proposed to implement a task force to provide recommendations to the Colorado Department of Labor and Employment to form the basis for new state law.

Ideally, future legislation would give employees protection against discrimination and employers the ability to continue to protect themselves against on-the-job substance abuse and impairment. What is less clear is how but one aspect that, according to Burness’s article, is agreed upon is that company drug testing policies will need to change with the times, with many suggesting that the procedures for off-the-job marijuana use should be no different from off-the-job alcohol use. Currently, a worker is legally protected from getting fired for having a drink at home in their off-time, but that is not the case for either recreational or medical marijuana use.

Traditional Drug Testing Is Hurting Recruitment & Retention of Top-Talent

Unfortunately, employers currently rely heavily on outdated drug screening programs in their efforts to ensure a drug-free workplace. However, programs that test for use rather than impairment are becoming increasingly ineffectual and, in many cases, a liability for employers struggling to hire otherwise qualified employees who cannot pass a THC pre-screen.

According to a survey conducted by staffing firm ManpowerGroup and released in September 2021, 45,000 employers worldwide are eliminating or modifying drug-testing policies to attract and retain in-demand talent. Amazon, for example, has announced that it is adjusting its drug-testing policy for U.S. operations and will no longer screen for marijuana in many circumstances. “In the past, like many employers, we’ve disqualified people from working at Amazon if they tested positive for marijuana use,” said Dave Clark, CEO of Worldwide Consumer Services. “However, given where state laws are moving across the U.S., we’ve changed course. We will no longer include marijuana in our comprehensive drug-screening program for any positions not regulated by the Department of Transportation and will instead treat it the same as alcohol use.”

AlertMeter® Impairment Testing: A Win/Win for Employers and Employees

At Predictive Safety, we believe that the solution for safety-sensitive companies who want to strongly compete for top workers in a tight labor market, even as the legalization and use of cannabis (marijuana) expands, is impairment testing using our patented, 60-second AlertMeter® app. The AlertMeter gives your company the advantage of quickly and accurately assessing a worker’s cognitive state to identify impairment due to any cause, including fatigue, before and/or during shifts.

Testing for impairment rather than use can help employers send a message to their workforce effectively, “We support your right to make your own lifestyle decisions, and for your and your fellow workers’ protection, we require that you are not impaired at work.”

Impairment testing is also sensitive to commonly undetected sources of impairment such as fatigue, hangovers, emotional distress, prescription medication, illness, dehydration, physical pain, and more. Impairment testing creates an opportunity for a positive shift in the company culture that: (1) looks at the whole human (2) seeks to identify impairment, not substances (3) is proactive rather than reactive (4) is supportive rather than punitive.

Companies that choose to enforce a zero-tolerance policy can also benefit from AlertMeter. Impairment assessment provides a means for consistent policy application and an objective signal for a conversation with a manager or HR professional trained to spot signs and symptoms. In such cases, it is entirely in the company’s right to execute a drug screen and take appropriate action according to company policy.

Beyond improving employee morale, more effective hiring and liability avoidance are significant financial advantages of impairment testing. Case studies with clients using Predictive Safety’s AlertMeter consistently show a greater than 30% reduction in claims (workers comp, general liability, and auto liability). They also show an average 50% reduction in the cost of claims and 40% improvement in core safety metrics such as OSHA’s TRIR (Total Reportable Incident Rate). These financial gains translate to a return on investment of 15X to 30X.

Employers In All 50 States Will Face New Requirements Due To Legalize Cannabis

Colorado is not the only state struggling with the new world of legalized cannabis. In New Jersey, a new law tasks the Cannabis Regulatory Commission with adoption standards for a “Workplace Impairment Recognition Expert” (WIRE). A company’s WIRE must be trained to detect and identify employee use of or impairment from marijuana or other intoxicating substances. The law left it up to the commission to issue the appropriate regulation on WIREs which could create additional burdens on employers to provide and maintain appropriate training for staff WIREs and could potentially open additional liabilities if the WIRE is either inappropriately trained or is not engaged as recommended by the law.

Other states will likely follow in New Jersey’s footsteps. The addition of a scientifically validated assessment tool like AlertMeter into these policies could provide an essential means to reduce human error and bias in application of policy while protecting the rights and privacy of the worker and limiting liability for the employer.

A well-implemented impairment testing program is supportive, not punitive. Managers and supervisors cannot all be trained to be WIREs. They also do not have time to evaluate each person every day for impairment before the job starts.  A well-designed impairment testing system also includes technology to prevent cheating and false-positive results. It should function on inexpensive or already owned devices and provide management tools and reporting to support compliance and oversight. The system must also support policy to protect employers from liability (someone misses a test and has an accident, or someone tests as okay and then has an accident).

State Legislatures Should Consider Scientifically Validated Impairment Testing     

As stated in the article, Rep. Edie Hooton is offering legislation that will give authority to a task force of experts with a wide range of backgrounds to make recommendations that the state Department of Labor and Employment would use as the basis of new state law. It would behoove this task force to take a serious look at impairment testing and to consider Predictive Safety’s AlertMeter technology to be a part of any legislation that supports workers and employers, or at the very least assure that this type of technology is not restricted in the new law.

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