Maine Marijuana Law Limits Drug Testing and Discipline for Federally Regulated Employees

Written By Lucas Kibby

Some portions of Maine’s recreational marijuana law went into effect February 1, 2018. One of the provisions that took effect on still lets employers to not allow marijuana in the workplace (consumption, possession, trade, display, transportation, sale, or growing).

However, another provision prohibits employers from taking adverse employment actions for off-premises marijuana use, “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”

This law effectively prevents Maine employers from all drug testing except reasonable suspicion testing, unless federally regulated drug testing.

The Problem this Gives Employers

This language presents a problem for employers that conduct drug testing, because a drug test does not reveal where someone may have used marijuana because marijuana can stay in the body for days or weeks.

Maine’s Department of Labor has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible in Maine, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace.

Employers with federally regulated employees (such as the U.S. Department of Transportation’s drug and alcohol testing regulations) can still drug test for marijuana but are not exempt from Maine’s recreational marijuana law.

While federal regulations require testing for marijuana, they do not address the employment consequences for testing positive (other than requiring the employee to stop performing safety-sensitive functions).

Employers regulated by the Department of Transportation, therefore, must consider what employment consequences will be imposed for positive marijuana test results, keeping in mind that the Maine recreational marijuana law does not permit employers to take adverse employment actions based on off-premises marijuana use.

So What Can Employers of Federally Regulated Employees Consider?

There are really only three things employers of these employees can or can’t do. From there is gets complicated.

First, these employers cannot fire federally regulated employees for testing positive for marijuana. If this is ignored, legal action can be taken against the employer for violating Maine’s recreational marijuana law.

Second, the employer must stop the employee from performing safety-sensitive functions (like driving a CMV truck) until the employee successfully completes the return-to-duty SAP process with a DOT-qualified substance abuse professional. If this is ignored, the employer is subject to fines of up to $10,000 per day.

In Maine, this employee (that cannot be fired) needs to find a new role in the company that is not safety sensitive and expect them to be there for a a month or two, based on the SAP’s recommendation for treatment and/or education. However, sometimes if the positive drug test is due to a “refusal to take a test” because they didn’t understand the rules, the SAPs recommendation can be quicker than this. But, if the SAP thinks the employee could be “addicted”, they could recommend a 6 weeks program of rehab or “AA” type classes.

The issue here is that if, theoretically, all your DOT CMV drivers smoke marijuana at a party the night before they drive, but are then required to do a reasonable suspicion test, and they all test positive, the employer cannot fire any of them, their trucking delivery comes to a standstill, and all these drivers will have to find another job to do for the next month or so until they complete the SAPs recommendation program and return-to-duty drug test.

Third, the employee can still choose to find another job, outside of the safety-sensitive roles, just cannot be fired.

So What about the Complications?

Let’s stop thinking of drug testing as something punitive. Rather that it incentivizes employees to stay clean and promote a safer work environment for all workers.

I want to stress that these suggestions of what an employer could considered should be looked over by a lawyer that knows the state laws. However, there are some areas that an employer can still protect themselves.

So the employer needs to really think about what to do with the employee for a month or so. But, do these drivers have to be working during this time? If the company policy was unpaid or paid suspension for a positive drug test, the employee does not have to find work for the employees until they finish their return-to-duty process.

Another option is if the policy says the employee must pay for the treatment program and drug tests, and the employee does not want to pay, then the employer could fire the employee for not following their company policy. This option could be extra complicated because of Maine’s Recreational Marijuana Law provision does not permit employers to take adverse employment actions based on off-premises marijuana use. Is it “adverse employment actions” if the company policy says the employee must pay for the return-to-duty program? We don’t know.

If this option is allowed, then maybe an employer could do something similar for non-federally regulated employees who fail a reasonable suspicion drug test in Maine. These non-federal employees could be required to go through a SAP process too (just follow the federal guidelines), make the employee pay for the treatment program and drug tests, and fire the employee if they don’t want to pay.

Lastly, there is the goal of proving the drug tested employee is likely high at work. There is a test that can examine an employee’s cognitive alertness. AlertMeter measures a person’s cognitive alertness with a 60 second graphic test.  AlertMeter is backed by rigorous alertness and impairment research and can now give employers empirical evidence to demonstrate an employee’s readiness to work, and companies can have new confidence in the teams they deploy.

If the company requires that any employee who has to take a reasonable suspicion drug test to also take this cognitive alertness test, and fails both, then this could possible prove they were high at work, which an employer could take adverse employment actions.

We advise HR professionals to review and update both company’s general workplace drug and alcohol policy and its testing policy to reflect the changes. Also, remind employees that they still can’t be impaired at work and can’t possess, distribute or use marijuana at work.

We also recommend that until the courts or future legislation clarifies an employer’s responsibility, companies should contact legal counsel prior to taking any adverse action against an applicant or employee who tests positive for marijuana.