As previously reported here, on November 8, 2016, Maine voters approved “Question 1 – An Act to Legalize Marijuana” (“the Act”), which allows for, among other things, the recreational use of marijuana. The Act became the first law of its kind in the nation to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.

Simply stated, the Act prohibits employers from refusing to employ or otherwise taking any adverse action against any person age 21 or older based on that individual’s off-premises marijuana use. However, the Act permits employers to bar the on-premises use and possession of marijuana and to discipline employees for being under the influence of marijuana in the workplace. Employers may no longer test job applicants for marijuana. Moreover, according to the Maine Department of Labor, for purposes of a reasonable suspicion drug test, an employee’s positive drug test, by itself, will not be sufficient to prove that the employee is “under the influence” of marijuana.

Recently, the Maine Department of Labor issued a two-page “Guide For Employers, Marijuana and Other Substances of Use in the Workplace,” which can be found here. The Guide reiterates the points above:

  • Employers may continue to prohibit any use or possession of marijuana at work and may discipline employees found to be “under the influence” (or impaired by) marijuana at work.
  • Employers may not be able to discipline an employee or disqualify a job applicant based solely on a positive marijuana test.

If an employee tests positive for marijuana, which can stay in the system for a few weeks, the test result says nothing about where that person consumed marijuana. The Guide provides little help for employers on this issue and the overall impact of the Act on an employer’s drug testing program. According to the Guide:

In Maine, marijuana is still on the list of what can be tested. Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL). The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law. Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.”

In light of this lack of guidance, Maine employers must determine whether to continue testing employees for marijuana and how best to address any employee positive test result for marijuana. Maine employers also should immediately discontinue testing job applicants for marijuana, ensure they are only testing in accordance with a state-approved workplace drug-testing policy, and determine whether modifications to their existing policy are necessary in light of the Act.