On November 8, 2016, Maine voters approved "Question 1 – An Act to Legalize Marijuana," and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. The voter-approved law 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). It also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities.
The law 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 legislation designed to set up a retail market for cannabis. On November 6, 2017, the Maine legislature sustained the Governor's veto.
These events did not impact the anti-discrimination portion of the voter-approved law. Effective February 1, 2018, Maine became the first state in the nation to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana. It effectively meant that Maine employers could no longer test job applicants for marijuana, and according to the Maine Department of Labor (DOL), for purposes of a reasonable suspicion drug test, an employee's positive drug test, by itself, would not be sufficient to prove that the employee is "under the influence" of marijuana.
What once seemed so clear now seems hazy because the Maine Legislature and Governor had more to say about recreational marijuana. On April 27, 2018, the Governor again vetoed implementing leglislation, but this time, on May 2, 2018, the Maine Legislature overrode the Governor's second veto and passed LD 1719, "An Act to Implement a Regulatory Structure for Adult Use Marijuana." The Act is effective immediately.
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? Arguments can be made both ways. On the one hand, that the Maine Legislature removed this provision from the voter-approved law suggests the Legislature sought to grant employers the right to take action against applicants and employees for their lawful use of marijuana, even if not during working time or on the employer's premises. On the other hand, all of the provisions that delineate what employers can do when it comes to recreational marijuana focus solely on on-duty and on-premises use and provide no guidance to employers as to what, if anything, they can do about off-duty and off-site use. 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.
As a reminder, Maine employers may drug test applicants and employees only if they have a written drug testing policy that has been approved by the Maine DOL. Maine employers that do have a state-approved workplace drug-testing policy should consider modifications to their existing policy and also continue to be mindful of the state's medical marijuana law. In addition, before taking action against any employee for a positive test result for marijuana where there is no evidence of use or impairment at work, employers should consider consulting with employment counsel experienced in this evolving area of the law.
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