Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 1, 2018, Maine will become the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products, provided the use occurs away from the workplace. In preparation for this change, the Maine Department of Labor has removed marijuana from the list of drugs for which an employer may test in its “model” applicant drug-testing policy. Although wrangling between the state legislature and Governor Paul LePage has delayed the retail sale of marijuana, the remaining provisions of Maine’s “Question 1 – An Act to Legalize Marijuana” (“the Act”), are slated to move forward despite fears doing so will hurt business in the state.
How Maine Came to Embrace Recreational Marijuana
On November 8, 2016, Maine voters approved the Act, permitting the recreational use, retail sale and taxation of marijuana. Although the law was originally scheduled to take effect on January 30, 2017, the Maine legislature imposed a moratorium on retail sales and taxation (as well as employment anti-discrimination provisions) in order to provide additional time to promulgate rules on marijuana sale and taxation, and to resolve other outstanding issues. The new effective date for those portions of the Act was pushed to February 1, 2018,1 although as described below, the state has yet to finalize rules that will permit the retail sale of marijuana and marijuana products.
Significantly for employers, the employment anti-discrimination provisions of the Act are set to become effective February 1, 2018. The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside the … employer’s … property.” However, regardless of where marijuana is consumed, the Act allows employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.” According to a spokesperson from the Maine Department of Labor, who spoke to the legislature in July, a positive drug test alone will not suffice to demonstrate that a worker was “under the influence” of marijuana.2
Given the current posture of the law, from February 1, 2018 forward, employers with lawful workplace drug-testing policies implemented in accordance with Maine law will need to assess compliance approaches, risks and risk tolerance in connection with marijuana policy prohibitions, continued marijuana testing and adverse action, if any, based on verified confirmed positive marijuana test results. The law does not affect compliance with federally mandated testing for marijuana, such as testing under U.S. Department of Transportation regulations of certain commercial motor vehicle drivers or related prohibitions on marijuana use. It remains to be seen whether the non-discrimination provisions contained in the law will be enforced by the courts, especially given the conflict between federal and state law.3
More information, including links and updates on the most recent gubernatorial and legislative developments, can be found at the recreational marijuana web page established by the Maine legislature at http://legislature.maine.gov/9419.
1 The Maine Legislature’s latest update on its recreational marijuana page, dated January 24, 2018, indicates the state is considering extending the existing moratorium until April 18; however, House Republicans and Governor LePage do not support the bill because they want a longer extension. See https://www.pressherald.com/2018/01/24/lepage-likely-to-veto-bill-to-extend-pot-sales-moratorium-in-hopes-of-longer-delay/.
3 See, e.g., Emerald Steel Fabricators v. Bureau of Labor and Industry, No. S056265 (Or. 2010), holding that since federal law classes marijuana as a Schedule I prohibited controlled substance, state medical marijuana statute re-classifying drug for medical purposes was directly contrary to and therefore preempted by federal law; as a result, employer was not obligated to employ medical marijuana users.