Based off of information received in a Portland Press Herald article, we previously noted that the Maine Department of Labor Director of Policy, Operations and Communications, Julie Rabinowitz, reported to the legislature’s Marijuana Legalization Implementation Committee that businesses with Maine-state drug testing policies should not test job applicants and workers for marijuana, because even if the tests came back positive, employers cannot fire the individual. The Maine Department of Labor issued a press release shortly after the article was posted (and after our initial blog post) noting that this interpretation would only be relevant if the legislature does not change the current language of the statute prior to February 2018 when the law takes affect—at this time, however, employers may permissibly refuse to hire an applicant who tests positive for marijuana.

Specifically, Section 2454(2) of the Marijuana Legalization Act provides: “This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”

Moreover, Section 2454(3) provides: “A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.”

These two provisions---if unchanged before February 2018—are what the DOL is relying upon to support the position that employers will not be able to take adverse action against an employee even if the employer has a state-sanctioned drug testing policy and that employee fails the drug test. Recently, the Massachusetts Supreme Court found language similar to that found in Section 2454(2) to implicitly require an employer to attempt to accommodate employees who had marijuana in their system while at work, but who did not use the marijuana at work. The additional hurdle that the Maine statute as a whole creates for employers is the fact that there currently are no scientifically proven ways to determine whether an employee is under the influence of marijuana. Accordingly, an employer is relying upon a determination that an employee is “under the influence,” it is recommended that a policy or practice be created as to what standard will be relied upon to make this determination.

Currently, the DOL is noting that “as an at-will state, a Maine employer or employee can end the employment relationship for any reason, and an employer may choose not to hire an applicant with a marijuana-positive drug test without a certification for medical use.” After 2018, without a legislative change, that may not be the case. Until there is clarity in the legislation—or a court case that clarifies employers’ responsibilities—we recommend employers contact counsel prior to taking any adverse action against an employee who tests positive for marijuana under a state-approved drug test.