In Maine, adult-use marijuana has been legal since the beginning of 2017, although implementation of the law was postponed until early 2018. One question that has arisen since then is whether employers may discipline or fire employees who test positive for marijuana. The simple answer is no, but many details need to be resolved.

No firing for off-work use

Under Sections 2454.1-4 of Maine’s Marijuana Legalization Act, schools, employers, and landlords “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.” In addition, “A person may not be denied parental rights and responsibilities or contact with a minor child….as a result of acting in accordance with this chapter.” Under Maine’s law, use of marijuana at the workplace remains under the control of employers, and an employee may still be fired for showing up to work while impaired by any drug. However, the law does prevent employers from penalizing an employee who works while sober but tests positive for marijuana.

Some questions arise from this new law, however. If a workplace drug test reveals marijuana use, could an employee be deemed to be under the influence at work? What level of THC in the body is low enough to prevent firing? With alcohol, guidelines are well established, but with marijuana they are not. Should someone operating heavy machinery, such as a forklift, be subject to a more stringent standard than an office worker? Employers may decide that no use is acceptable for certain types of jobs, even if that decision risks a lawsuit.

Guidelines being developed for employers

To deal with these questions, Maine’s legislative and administrative bodies are developing guidelines for employers. To prevent unfair or biased application of drug testing, Maine requires that employers have written guidelines for workplace drug testing that are approved by the state’s Department of Labor. These guidelines must have a floor, or an amount below which the person tested is deemed not under the influence.

Maine’s employers are also required to adhere to federal law regarding drug testing, which notably affects truck drivers. Federal law prohibits marijuana use, so Maine’s truck drivers still need to refrain. Another legal issue is whether, for example, an unemployed forklift operator or truck driver, who is or may be bound to refrain from marijuana use entirely, breaks the law by using marijuana while receiving unemployment benefits, since the use makes the person unable to be employed. If persons in such situations are using medical marijuana, are they still in violation of the law?

The Portland Press Herald has published a story citing Julie Rabinowitz, the director of policy for Maine’s Department of Labor. According to Rabinowitz, “of Maine’s 46,000 employers, only about 800 have a state-approved drug testing program.” Thus for many employees, drug testing issues are not of much concern, since their employers do not test for drugs. In addition, Rabinowitz cited relatively low failure rates for employees tested for drugs. In most industries, the rate is a little less than 5 percent.

The questions regarding legal marijuana use by employees are just beginning to be answered in Maine and other states. For example, the Portland Press Herald article cites a case in which a worker who had been injured on the job sued to have his medical marijuana paid for as a treatment for the injury. The insurance company involved in that case has argued that it cannot violate federal law. As marijuana laws change, other laws will be affected, including employment law, and legislatures and administrative agencies are obliged to resolve conflicting laws and regulations.

What do you think: What will happen to marijuana testing in the workplace? Leave a comment below.