Employment Issues Remain Uncertain as Maine Marijuana Law Moves Forward

Employment Issues Remain Uncertain as Maine Marijuana Law Moves Forward

Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation. Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.

Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property. That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).

The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:

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Maine Employers Can No Longer Fire Employees for Smoking Marijuana off the Clock

Maine Employers Can No Longer Fire Employees for Smoking Marijuana off the Clock

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:

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Debates Over Minimum Wage Hikes Rage on in Several US States

Debates Over Minimum Wage Hikes Rage on in Several US States

Voters in four US states passed referenda last November to raise their minimum wages and a total of 19 states increased theirs at the start of this year, while some cities have also moved to do the same in their local jurisdictions. These efforts to raise pay for low-wage workers have not gone unchallenged, however, as lawmakers in some of these states have advanced bills that would slow the increases or create exemptions to them, such as allowing employers to pay workers under the age of 18 a lower wage.

On Tuesday, Maine’s Republican Governor Paul LePage asked the state legislature to scale back the ballot initiative hike voters there approved on election day, under which the state’s wage floor rose from $7.50 to $9 an hour on January 1 and is set to rise by another $1 each year until reaching $12 an hour in 2020, the Portland Press Herald reports:

LePage’s bill would increase the minimum wage in annual 50-cent increments until it reaches $11 an hour in 2021. Additionally, the governor wants to eliminate the annual cost-of-living adjustments – known as “indexing” – beginning in 2020 and restore the so-called “tip credit” in which tipped workers are paid less than the minimum wage as long as tips cover the difference. It also seeks to change the definition of salaried employees for overtime purposes.

Lastly, LePage’s bill, L.D. 1609, is one of several pending in the Legislature that would allow employers to pay lower “training wages” to workers under 20 for the first 90 days of employment, and lower “youth wages” to workers under 18. Those wages would be either 80 percent of the state’s minimum or the federal minimum, whichever is higher.

Representatives from the state Department of Labor and Chamber of Commerce testified before the legislature that rapidly raising the minimum wage across the board would hurt small businesses and that the increase approved by referendum was insufficiently flexible to account for varying economic conditions in different parts of the state.

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After Referenda, Legislators Look to Water Down Minimum Wage Hikes

After Referenda, Legislators Look to Water Down Minimum Wage Hikes

In last November’s US elections, voters in Arizona, Colorado, Maine, and Washington State passed ballot initiatives to raise the minimum wage in these states to between $12 and $13.50 per hour by 2020, while wage floors are also rising in other states and cities by legislative means, as part of an overall trend we are seeing of state and local governments raising their own pay standards. Yet those who voted for a higher minimum wage at the polls in November may not have the last word on the matter, Bloomberg reports, as some lawmakers in those states are trying to weaken or override the measures approved by voters:

In Washington, where voters opted for a $13.50 an hour minimum wage by 2020, and Maine, where it was set to rise to $12 that year, state legislators have proposed a battery of bills to water down the increases. The city council in Flagstaff, Arizona has done the same to a local initiative that would have boosted the wage floor to $12 this year, sooner than the statewide increase. …

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Several States Raise Minimum Wage, Relax Marijuana Laws

Several States Raise Minimum Wage, Relax Marijuana Laws

The upset victory of Donald Trump in the presidential race was the biggest change to come out of Tuesday’s elections in the US, but it was not the only decision made at the polls with major consequences for business and HR. Voters in several states participated in referenda or ballot initiatives whose outcomes will affect hiring, compensation, and other HR policies.

Marijuana Legalization Moves Ahead

California, Massachusetts, and Nevada all passed ballot measures legalizing recreational marijuana use. Arizona voters rejected a legalization initiative while another, in Maine, is too close to call, so the state is looking at absentee ballots (Update: Maine’s ballot initiative ultimately passed by a narrow margin and went into effect January 30). Measures to legalize the use of medical marijuana succeeded in Arkansas, Florida, and North Dakota, while Montana liberalized its existing law on medical marijuana. After Tuesday’s votes, 28 states plus Washington, DC have legalized marijuana use for some purpose, either medical or recreational.

This national tide may have an impact on employers’ drug policies. In short, because marijuana remains illegal at the federal level, employers are still on fairly solid legal ground to maintain zero-tolerance policies, but these policies need to be communicated clearly and we may see more litigation over medical marijuana-related disability claims. Employment lawyers tell SHRM’s Lisa Nagele-Piazza that employers in states where medical use has been legalized may want to specifically address it in their drug policies:

Particularly if they are card holders for medical marijuana, employees may think that because it is legal, they are protected, [Danielle Urban, an attorney with Fisher Phillips,] noted. However, only a few states actually provide employment protections for card carriers. Employers should also note that some states, like California, have very restrictive drug-testing rules, [Oagletree Deakins attorney Austin] Smith said. Therefore, if employers want to test employees more often, they need to know what limits their state puts on drug testing.

So Do Minimum Wages

Arizona, Colorado, and Maine all passed referenda raising the minimum wage to $12 an hour by 2020, and Washington state voted to raise its pay floor to $13.50 an hour by the same year. A South Dakota referendum that would have lowered the minimum wage for employees under 18 from $8.55 to $7.50 failed decisively. Bloomberg’s Jordan Yadoo explains the economic debate that motivated South Dakota to vote on the question:

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