Maine – Recreational Marijuana

Posted by: Accurate Background

March 15, 2018

Maine Employers Can No Longer Refuse to Employ Individuals Who Test Positive for Marijuana

The Basics

  • Location: Maine
  • Legislation: Marijuana Legalization Act
  • Type: Drug Testing
  • Effective: February 1, 2018 (for sections noted below)

Key Takeaways

  • Employers are prohibited from refusing to employ or otherwise penalizing a person for legal consumption of marijuana outside of the employer’s property.
  • Employers must have a drug testing policy approved by the Bureau of Labor Standards, unless the exception for federally mandated employers applies.
Maine became one of eight states that have legalized marijuana for recreational use in 2016, however, they continue to work on the language and requirements that will permit the cultivation and sale of marijuana and marijuana products. Nevertheless, this did not stop a number of provisions of the Act from going into effect on February 1, 2018. Previously, Maine prohibited employers from penalizing medical marijuana users solely on their status as medical marijuana cardholders. The new recreational marijuana law seems to be following this anti‐discrimination trend by prohibiting employers from penalizing employees and prospective employees for marijuana use outside of the workplace.

What is prohibited in the law?

Under Section 2454(3) of the Maine Revised Statutes employers may not refuse to employ or otherwise penalize a person 21 year of age or older solely for that person's consuming marijuana outside of the employer's property. If an employer has, or determines to proceed with, a drug testing program, they must have a drug testing policy approved by the Maine Department of Labor’s Bureau of Labor Standards.

How does this affect employers trying to promote a drug‐free workplace through their employment drug testing policies?

Under Section 2454(2) of the Maine Revised Statutes, employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. Nor does it affect the ability of an employer to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. Employers may need to review drug‐free workplace policies to ensure they align with the law.

Are there any exceptions?

According to guidance from the Maine Department of Labor, unless “an employer has any employees who are subject to a federally mandated drug‐and‐alcohol testing program working in Maine” they must have an approved drug testing policy. Federally mandated employers may expand the federal testing pool to cover all employees. These exceptions are echoed in Maine’s Medical Marijuana Act and the Department of Transportation (DOT) has also emphasized that state initiatives will have no bearing on the DOT regulated drug testing program. The DOT has taken the position that the use of medical or recreational marijuana is “unacceptable for any safety‐sensitive employee” subject to DOT drug testing.

Recommendations

We recommend you review the Act and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations. Seyfarth Shaw has also provided an overview you may read here.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page. Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.