Maine Adds Protections for Employees and Applicants Who Use Recreational Marijuana Outside of Work
Published by Eric A. Welter and Kimberly Kauffman on March 23, 2017
Employers in Maine should review their drug-related policies to ensure compliance with the new legalization initiative.
On January 30, 2017, the use of marijuana became legal in Maine after voters approved an initiative to legalize recreational marijuana use during the November 2016 elections. The legalization of marijuana in any jurisdiction in the U.S. continues to raise novel legal issues as marijuana is still illegal under federal law. What makes Maine particularly unique from other jurisdictions that have legalized the use of marijuana, however, is that it provides certain protections to recreational users, including employees and applicants.
In Maine, people 21 years of age and older may now purchase and use up to 2.5 ounces of marijuana for recreational use. People age 21 and up may also grow or possess up to six marijuana plants. Additionally, the law allows for retail sales of marijuana (although the start of retail sales has been delayed until February 2018). In regard to marijuana and the workplace, the law makes clear that employers are not required to permit or accommodate the use, possession, or sale of marijuana in the workplace. Employers may continue to enforce drug-free workplace policies restricting possession or the use of marijuana in the workplace or disciplining employees under the influence of marijuana.
So what protection is afforded to employees who use marijuana outside of work? Under the legalization law, an employer may not refuse to employ or “otherwise penalize” an individual 21 years of age or older solely for consuming marijuana outside of the workplace.
This prohibition on the discrimination against recreational users raises interesting issues for employers. For example, an employer would not be able to fire an employee solely because he or she tested positive for marijuana (unless the employer had proof the employee was in possession of, or using, marijuana on the job). Unlike alcohol, marijuana can stay in a person’s system for weeks, so an employee or applicant could test positive for marijuana but not actually be impaired. Because impairment from marijuana is often difficult to assess, employers are left in a tough situation in which they can discipline impaired employees but are prohibited from disciplining employees merely because they at some point used marijuana outside of work. Similarly, an employer could not refuse to hire an applicant merely because he or she tested positive for marijuana.
Such protection for users does not always exist in other jurisdictions that have legalized marijuana use. For instance, the Colorado Supreme Court has held that despite marijuana use being legal under state law, an employer may still fire an employee for testing positive for marijuana, even if the employee used marijuana outside of work.
Employers in Maine should review their drug-related policies to ensure compliance with the new legalization initiative. When reviewing such policies, employers should be aware that even though the legalization law explicitly provides that employers do not need to tolerate or permit the use of marijuana in the workplace, it also states that employers cannot discriminate against employees and applicants for using marijuana outside of work. Therefore, if an employer disciplines an employee who uses marijuana outside of work, the employer should have a legitimate business reason for the disciplinary action, unrelated to the individual’s use of marijuana. Additionally, employers should consider taking other proactive steps in response to legalization, such as educating managers and staff on the signs of marijuana impairment. Finally, because so much uncertainty currently surrounds the legalization scheme, employers should carefully track developments in the law and revise their policies as necessary.Topics: Drug and Alcohol Issues, Drug-Free Workplace, Employer responsibility, Employment Discrimination and Harassment, Financial Services, Government Contracting, Healthcare, Hospitality, Maine, marijuana, Media & Entertainment, policies, Procedures and Employee Handbooks, Retail, Technology, Transportation, Workplace Safety