Search form

Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers

By Matthew F. Nieman, Kathryn J. Russo and Debra Weiss Ford
  • February 21, 2018

A provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. This law effectively prevents Maine employers from testing for marijuana for pre-employment purposes. The law also affects employers who employ employees subject to federal drug and alcohol testing regulations, as well as those employers who are exempt from complying with Maine’s drug testing law.

Background

Maine voters approved the recreational marijuana law in November 2016. The law originally was scheduled to take effect on January 30, 2017. However, emergency legislation passed three days before that date delayed implementation of certain provisions of the law to allow the legislature to review and revise provisions on the retail sales of marijuana. Once the legislature did so, the Governor, on November 3, 2017, vetoed the law. The legislature sustained the Governor’s veto.

Despite the veto, portions of the recreational marijuana law that were not under review were scheduled to take effect on February 1, 2018. As no action was taken prior to that date to delay or stop implementation of those provisions, they went into effect as scheduled.

Employer Provisions

One of the provisions that took effect on February 1 provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace. Further, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.

However, the law prohibits employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.” This language presents a problem for employers that conduct drug testing because a drug test does not reveal where someone may have used marijuana. It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property,” because marijuana can stay in the human body for days or weeks.

The Maine Department of Labor is taking the position that employers may not test for marijuana as part of a pre-employment drug test. However, the Department has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible in Maine, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace.

Impact on Employers Exempt from Compliance with Maine Drug Testing Law

Employers with employees who are subject to federally mandated drug and alcohol testing regulations already are exempt from compliance with Maine’s drug testing statute with regard to those employees as well as their non-federally regulated employees. 26 Maine Rev. Stat. § 681(8). These employers, however, are not exempt from Maine’s recreational marijuana law. While federal regulations (such as the U.S. Department of Transportation’s drug and alcohol testing regulations) require testing for marijuana, they do not address the employment consequences for testing positive (other than requiring the employee to stop performing safety-sensitive functions). Employers regulated by the Department of Transportation, therefore, must consider what employment consequences will be imposed for positive marijuana test results, keeping in mind that the Maine recreational marijuana law does not permit employers to take adverse actions based on off-premises marijuana use. Additionally, these employers may not test their non-federally regulated employees for marijuana as part of any type of drug test (e.g., pre-employment, post-accident, and random), other than a drug test based on reasonable suspicion in Maine.

Employers that conduct drug testing in Maine should review their drug and alcohol testing policies and ensure compliance with the requirements of the Maine recreational marijuana law. Jackson Lewis attorneys are available to assist employers with this and other workplace issues.

©2018 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

July 15, 2019

New Jersey Amends Medical Marijuana Law to Provide Job Protections, Include Drug Testing Procedures

July 15, 2019

New Jersey has provided job protections to medical marijuana users and created new drug testing procedures under new law signed by Governor Phil Murphy on July 2, 2019, that took effect upon signing. The new law also changes the name of the New Jersey Compassionate Use Medical Marijuana Act (N.J.S.A. 24:61-2 et seq.) to the “Jake... Read More

July 12, 2019

Oregon Passes Paid Family and Medical Leave Law

July 12, 2019

Oregon has joined a growing number of states to require employers to provide their workers paid family and medical leave. Employers in Oregon must provide up to 12 weeks of such paid leave to eligible employees beginning January 1, 2023, under the bill (HB 2005) passed by the state legislature. Governor Kate Brown has said she intends... Read More

July 10, 2019

2019: The Mid-Year Outlook for Employers

July 10, 2019

The first six months of 2019 have proven to be busy, challenging professionals in the labor and employment communities to keep up with a number of newly enacted laws and regulations. In the 2019: Mid-Year Outlook for Employers, Jackson Lewis attorneys provide a snapshot of activity from the first half of the year as well as a preview of... Read More