Maine: Employer Drug Testing Limited by Recreational Marijuana Law

APPLIES TO

All Employers of ME Employees

EFFECTIVE

February 1, 2018

QUESTIONS?

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(888) 378-2456

Maine citizens voted to legalize recreational marijuana use in 2016. While recreational use of marijuana is permitted, the law allows employers to prohibit the consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace, and employers could still maintain substance abuse policies at work.  However, the drug testing provision related to recreational marijuana use, effective February 1, 2018, significantly limits an employer’s ability to perform drug tests.

Specifically, the recreational marijuana law prohibits employers from refusing to employ an individual who is 21+ years old on the basis of recreational marijuana use outside the employer’s property.  This poses the obvious problem that current drug testing only detects the presence of marijuana in an individual’s body, not where or when the drug was consumed. To discipline an employee for marijuana use, employers must be able to show that an employee was impaired on the job, not just through a positive drug test. This requirement limits an employer’s ability to conduct marijuana testing as part of pre-employment, post-accident, or random drug testing, except for testing based on reasonable suspicion.

Workers who are subject to federally mandated drug and alcohol testing (e.g., U.S. Department of Transportation drivers) may also be subject to Maine’s recreational marijuana law discrimination provisions, given that federal requirements to conduct drug and alcohol testing do not address employment consequences for testing positive. Because application of the anti-discrimination provision of the state law is not yet clear, Maine employers caught in this cross-section of regulations must consider what consequences they can or will impose for positive testing when Maine prohibits adverse actions based on off-duty, off-premises marijuana consumption.

Action Items

  1. Have workplace substance abuse policies and drug testing procedures revised consistent with the state’s recreational marijuana law.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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