On November 8, 2016, Maine voters approved "Question 1 – An Act to Legalize Marijuana" ("Act"), and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. As approved, the Act would have allowed persons 21 years of age or older to use or possess up to 2½ ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person's residence, up to 6 flowering marijuana plants (and up to 12 immature plants). The Act also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities. Importantly for employers, the Act was the first law of its kind in the nation establishing express anti-discrimination protections for recreational marijuana users.
The Act was to become fully effective on January 30, 2017. However, on January 27, 2017, the legislature approved a moratorium on implementing parts of the law regarding retail sales and taxation until at least February 2018, giving time to resolve issues and promulgate rules.
However, on November 3, 2017, Governor Paul R. LePage vetoed the Act. In a letter to the legislature, the Governor outlined various reasons for his decision, including conflict between state and federal law, the Act's failure to address compatibility issues with the state's existing medical marijuana program, the Act's bifurcated regulatory structure, and timelines the Governor viewed as unrealistic. The Governor also wrote:
When I sought guidance from my counterpart in Colorado, he was adamant that Maine should learn from the mistakes made by his state and others that have pursued legalization efforts. He urged that we take the time necessary to get our law right from the start and not rush just to get something in place. There have been serious negative effects of legalization in other states—effects that should not be repeated in Maine. ... If Maine is going to legalize and regulate marijuana, it is imperative that we do it right.
Outside specific concerns about this bill, I continue to be concerned about expanded legalization of marijuana in Maine. The dangers of legalizing marijuana and normalizing its use in our society cannot be understated. Maine is now battling a horrific drug epidemic that claims more than one life a day due to overdoses caused by deadly opiates. Sending a message, especially to our young people, that some drugs that are still illegal under federal law are now sanctioned by the state may have unintended and grave consequences.
On November 6, 2017, the Maine legislature sustained the Governor's veto.
Although Maine employers may have a reprieve from a recreational marijuana law, Maine employers with workplace policies in other jurisdictions should consider making clear that as marijuana is still illegal under federal law, it is considered an illegal drug under the drug-free workplace policy, taking steps to minimize the risks of negligent actions and safety concerns that may be caused by marijuana use, and having conversations with drug testing vendors to determine how positive marijuana tests will be handled and reported where medical marijuana is approved.
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