By Yvette Farnsworth Baker, Esq.
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Maine has long been a state welcoming to marijuana use. Since 1999, Maine has permitted medical marijuana use, and a recreational marijuana law passed in 2016 that is on its way to implementation.

However, even in this marijuana-friendly state, the Maine Department of Labor is pleading with the legislature to continue to allow employers to establish drug-free workplaces and to clearly state that for Maine employers. Julie Rabinowitz, the department’s director of policy, operations and communications, implored Maine’s legislature, “Let’s stop thinking of drug testing as something punitive. Rather, it incentivizes employees, especially those in recovery, to stay clean, and promotes a safer work environment for all workers.”

Marijuana Protections: Potential Changes and Consequences to the Law as it Stands

Maine currently prohibits employers from penalizing medical marijuana users solely on their status as cardholders. The new recreational marijuana law likewise appears that it will restrict employers from disciplining employees solely based on marijuana use outside the workplace.

“Our laws are an outlier,” Rabinowitz said. “If the Legislature does not take action to provide clear, consistent, easy to follow regulations, Maine risks more employers leaving the state.” She cited examples such as California, Massachusetts, and Colorado as states that have protected employers’ rights to establish drug-free workplaces despite legalizing marijuana use.

The Maine legislature is in a position to make changes to the law. Since the recreational marijuana referendum passed, the legislature has already made three changes, one of which closed a loophole that may have allowed marijuana use by those under 21. A push for an additional change could make a big difference in workplace safety and productivity.

Marijuana in the Workplace: What Does the Law Say?

As written, the recreational marijuana law does allow employers to prohibit marijuana use in the workplace, and prohibits smoking in public places. However, an employer cannot discriminate against an employee or applicant based solely on recreational marijuana use outside the workplace. Recreational marijuana use outside of work can still be a factor in hiring or disciplinary decisions, but cannot be the only factor. Discipline is explicitly permitted for employees under the influence of marijuana at work. As well, safety sensitive positions can be denied to people testing positive for marijuana.

In Maine, around 800 employers have state-approved drug testing policies in place. This does not include companies who test pursuant to federal regulation. Julie Rabinowitz provided 2016 statistics for Maine, citing that about 91% of individuals who failed workplace drug screens tested positive for cannabinoids, and almost 5% of those tested failed workplace drug tests. These statistics only account for state-approved screening and do not include employees tested pursuant to federal regulations.

Rabinowitz pointed out that the rate of Maine employees who fail drug screens is higher than the national average.

Conclusion

Maine is primed for a strong push to change the state laws around marijuana testing in the workplace. The state department of labor is fighting for this change. Maine employees are testing positive for drugs at a higher rate than the national average, and the vast majority of these employees are using marijuana. The last year has already brought about several changes to the recreational marijuana law. Employers and industry leaders who care about drug-free workplaces in Maine, who want safety, productivity, and exemplary employees to be standard, should be joining the department of labor. There should be a concentrated effort now to promote clear laws in Maine that allow employers to regulate recreational marijuana use by their employees, whether use happens in or outside the workplace.

(C) 2017 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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