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Tuesday, January 22, 2019

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Maine recreational marijuana law limits employer drug testing

Maine recreational marijuana law limits employer drug testing

A provision of Maine's new recreational marijuana law prohibits the penalization of employees for using marijuana outside of work, effectively preventing employers from testing for the drug during the background check process.   

As of February 1, the law prevents employers from "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 language could present a problem for state employers, as marijuana stays in the human body for days or weeks, even if a worker is using the drug off-premises. In addition, employers are forbidden from testing non-federally regulated employees as part of any type of drug test, unless that test is based on reasonable suspicion.

While the Maine Department of Labor has stated that employers cannot test for marijuana as part of a pre-employment drug test, probable cause drug testing is still permissible, as the new recreational marijuana law allows employers to discipline hires under the influence of marijuana in the workplace. According to the provision, employers are also "not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana" at work.

Federal drug regulations, including those imposed by the Department of Transportation, don't address employment penalties for workers who receive positive marijuana test results. Maine employers regulated by the DOT therefore must consider the consequences for employee drug use, keeping in mind the prohibition of any adverse action based on off-site marijuana use.

In November 2016, Maine voters approved the sale of recreational marijuana for persons 21 years of age or older. The law was originally scheduled to take effect on January 30, 2017, but emergency legislation passed just days before that date delayed its implementation. Portions of the law not under review by state legislature officially went into effect last month. 

Ultimately, employers that conduct drug testing in Maine should review their drug and alcohol testing polices to remain compliant with the state's recreational marijuana law.

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