On the eleventh day of Christmas my true love gave to me eleven pipers piping. But these guys were not playing merry little tunes; instead, they were piping problems into the workplace that employers didn’t have to worry about ten years ago, like questing whether there is tobacco or marijuana in that pipe and what they can do about it either way.

States, cities, and municipalities across the country are legalizing marijuana—both for recreational purposes and for medical purposes. Medical Marijuana has been legal in Maine since 1999 (despite lacking any distribution method and other issues), and in 2009, voters approved “An act to establish the Maine Medical Marijuana Act”, which finally allowed for implementation. In addition to Maine’s legalization, Connecticut, Massachusetts, New Hampshire, Rhode Island, and Vermont each have independent statutes which permit the use of medical marijuana in limited circumstances. In fact, 23 states and the District of Columbia have all enacted laws permitting the use of medical marijuana. Additionally, Washington and Colorado have legalized recreational use of marijuana and Alaska and Oregon will allow recreational use in 2015. Closer to home, cities and municipalities—including Portland and South Portland—have legalized recreational use. But all of this legalization does not change the fact that marijuana remains illegal under Federal law; it remains, in fact, a Schedule I drug with the federal government currently recognizing no legitimate medical use for the drug.

This puts employers in a precarious position—how does one respond to employees who are believed to be under the influence, or impaired, by marijuana while at work? There are a number of issues that come into play and there is no easy answer. Do you have a drug testing policy? What does it say? Do you have a drug free workplace policy? What does it say? Do you work under any federal contracts or receive any federal grants? Has the individual informed you that they are using marijuana for a medical condition? Are they requesting you accommodate their use of marijuana? Depending on the answers to these questions (and a host of others), counsel is able to craft a response to the problem you are facing. The best advice that we can give you is do not go it alone. This is a monster of a problem, with developing law that can assist with solutions.

In addition to the above advice, we can also inform employers of their statutory duties. Under Maine law, employers have an affirmative duty:

A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

22 M.R.S.A. § 2423-E. Similarly, in Rhode Island and Connecticut, medical marijuana patients are given similar protected status with regard to employment.

Considering these statutes attempt to permit activity that is impermissible under federal law, employers clearly are in a difficult position in determining how to respond to issues dealing with the use of marijuana (whether medicinally or recreationally).