Maine was one of several states where voters passed ballot measures in 2016 to legalize the possession and use of marijuana for recreational purposes, along with California, Massachusetts, and Nevada. In most states that have legalized recreational or medicinal marijuana, employers are still allowed to reject candidates or fire employees for testing positive for the drug as part of a drug-free workplace policy, but Maine’s law, which came into effect on February 1, explicitly protects employees from adverse action based solely on their use of marijuana outside working hours and off the employer’s property. Attorneys from Littler Mendelson explained this provision in a blog post at the time:
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.
Employers of workers who are subject to mandatory marijuana testing under federal law, such as federal contractors and certain commercial vehicle operators, may still drug test in compliance with those laws. Other Maine employers, however, may need to reconsider their current drug policies in light of the new law, the attorneys add, as they may be found in violation of its anti-discrimination provisions if they reject an applicant or penalize an employee solely for failing a drug test. Current tests for marijuana do not show whether the user is presently intoxicated, only whether they have used the drug within the past several weeks, so an employer may need other evidence to show that an employee is high at work.
“The big question now for Maine employers is what to do with a positive drug test,” Ann Freeman, an attorney and counsel in the Portland office of law firm Bernstein Shur, tells Roy Maurer at SHRM:
The new law’s language at least implicitly suggests that an employer should accommodate an employee’s marijuana use so long as the use occurs outside of the workplace, which may conflict with employers’ zero-tolerance drug-testing policies. Then again, a violation of an employer’s drug-free workplace policy may be enough to get past the “solely” language, Freeman said. “An employer could argue that they are not taking this adverse action just because someone smoked pot on their own time—they are taking the action because the employee violated the employer’s policy.”
Employers who want to screen workers for marijuana must have their drug testing policy approved by the Maine Department of Labor, which few employers have done, Freeman added.
Marijuana remains illegal under federal law, classified as a Schedule I narcotic. Attorney General Jeff Sessions announced in January that he was rescinding an Obama administration policy under which the Justice Department would limit the prosecution of businesses and individuals selling or using marijuana in states that had legalized the drug, leading to fears that “legal” users or dispensaries will once again be pursued by federal authorities. Because it remains illegal at the federal level, employers in these states who wish to maintain drug-free policies have usually been considered on safe ground, but courts in Massachusetts and Rhode Island ruled last year in favor of medical marijuana patients who said their dismissals based on failed drug tests were discriminatory. As the legalization of marijuana, particularly for recreational use, is such a recent phenomenon, this is an evolving area of case law in which the judiciary has yet to settle the clash between state and federal policies.