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Marijuana Drug Testing Rules for Maine Employers Take Effect February 1, 2018

Published by and on March 22, 2018

The Maine Department of Labor adds new worker protections regarding adverse employment action based on employees’ use of marijuana outside of the workplace.

Effective January 30, 2017, the recreational use of marijuana became legal in Maine following a voter-approved initiative in November 2016. Under the Maine Act to Legalize Marijuana (“Act”), 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 in the workplace. The Act’s initial effects and implications for Maine employers are discussed here. Recently, however, certain anti-discrimination provisions of the Act become effective. As of February 1, 2018, Maine employers are prohibited from “refusing to employ [or otherwise penalize] a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.” This presents a problem for employers in discerning whether marijuana has been consumed in the workplace or elsewhere. The Maine Department of Labor has stepped in to shed some light on the issue.

Pursuant to the Act, the Maine Department of Labor has stated that employers may no longer test for marijuana as a part of any pre-employment drug test. In fact, the Department has removed marijuana from the list of drugs for which employers may test in the State’s model applicant testing policy. Further, the Department has stated that although employee drug testing for marijuana is still permissible, an employer must have probable cause or reasonable suspicion of influence of marijuana in the workplace to test for the substance. Because the Act allows for discipline of employee’s “under the influence” of marijuana in the workplace, the Department noted that a positive drug test alone will not support an employer’s position that an employer was “under the influence” of marijuana in the workplace.

Employers and employees subject to U.S. Department of Transportation (“DOT”) mandated drug and alcohol testing regulations must also make sure they are complaint with the Act’s worker protections. While federal regulations require employers to test certain employees for marijuana use, these regulations do not address the employment consequences of testing positive. This means that federally regulated employers must consider any consequences of testing positive for the federally controlled substance without violating Maine’s law, which does not permit employers to take adverse actions based on off-premises marijuana use. Further, employers subject to DOT rules cannot test non-federally regulated employees for marijuana under any drug test (e.g., pre-employment, post-accident, and random), other than a drug test based on probable cause or reasonable suspicion.

Welter Insight

Maine employers who conduct applicant and employee drug testing should review their drug and alcohol policies for compliance under the Act and any federally mandated requirements. Any Maine employers currently testing applicants for marijuana should be aware that they are prohibited from denying a position to any applicant over the age of 21 years for the reason that he or she tests positive for marijuana use. Any Maine employer concerned about employee discipline in light of the Act’s mandates should seek counsel before taking any adverse action against employees or applicants.

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