Employment issues remain uncertain as Maine marijuana law moves forward

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Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation.

Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.

Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property.

That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).

The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:

Importantly for employers is that the Act removed the provision in Question 1 that protected applicants and employees from their off-duty and off-site use of marijuana. Instead, the employment provisions in the Maine recreational marijuana law state that an employer:

  • Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
  • May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment; and
  • May discipline workers who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.

So, can employers take action against off-duty and off-site marijuana use or not? … Moreover, does the focus on on-duty and on-premises use, neither of which apply to job applicants, mean that employers cannot test applicants for marijuana? It remains to be seen whether the Maine DOL will clarify these ambiguities.

Because state-level legalization of marijuana is relatively new (and the drug remains classified as a Schedule I narcotic under federal law), there is precious little court precedent to guide employers in determining how these laws affect their drug policies. While the federal prohibition leaves employers on mostly solid ground if they wish to maintain a drug-free workplace policy, firing employees on the basis of a failed marijuana test could be legally risky in some of the growing number of states with legal marijuana, especially if they are licensed medical users. The Massachusetts Supreme Judicial Court ruled last year that a company had unlawfully discriminated against a medical marijuana user who was fired from her job for failing a drug test.

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