Effective February 1, 2018, a provision in Maine’s recreational marijuana law impacts workplace drug testing. As we previously blogged here, the law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. On its face, this law effectively prevents Maine employers from testing for marijuana for pre-employment purposes, and has other impacts as well.

After previous indications of clear guidance on the seeming conflict between this new provision and existing Maine drug testing statues and guidance, the Maine Department of Labor recently issued the following public comments regarding the impact of the recreational marijuana law:

In Maine, marijuana is still on the list of what can be tested. Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL). The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law. Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.

Maine employers therefore must continue to make their own informed decisions concerning whether (and when) they should continue to test for marijuana, and whether they can take disciplinary actions for positive marijuana test results. Employers should review their drug testing policies, and consult with counsel, to determine what course of action to take.