Maine Protects Employees Who Use Marijuana

Maine on February 1 became the first state in the U.S. to protect workers from adverse employment action based on their use of marijuana and marijuana products - as long as the employee uses it away from work. The Maine Department of Labor (DOL) removed marijuana on its model drug-testing policy from the list of drugs for which an employer may test. 
Maine voters passed a law permitting the use, retail sale and taxation of marijuana on the same day that Massachusetts adopted its recreational marijuana law in 2016, The Maine Legislature delayed the effective date of the law until February 1, 2018. 
The anti-discrimination provisions prohibit employers from refusing to employ or from otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside the … employers… property.”  
The law allows employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.” A positive test in and of itself will not automatically demonstrate that the employee was under the influence of marijuana at work, according to the Maine Department of Labor.
This standard brings Maine employers close to the new Massachusetts situation of having to consider a reasonable accommodation when an employee tests positive for marijuana but can show the need for it following a disability diagnosis. 
While there is likely to be litigation challenging the impact of the law in the future, AIM members who operate in Maine, you should review their drug-testing policies to ensure they comply with the new law. 
But remember that the new Maine law, like the Massachusetts law, does not affect compliance with federally mandated testing for marijuana, such as testing under U.S. Department of Transportation regulations of certain commercial motor vehicle drivers or related prohibitions on marijuana use.  

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