By citizen’s initiative, Maine voters approved the Marijuana Legalization Act in November 2016. As originally enacted, the law prohibited employers from refusing to hire or penalizing applicants or employees for off-site marijuana use. In 2018, the Maine Legislature passed L.D. 1719, “An Act to Implement a Regulatory Structure for Adult Use Marijuana.” The Governor vetoed the New Act, but the veto was overridden by the Maine Legislature. P.L. 2018 Ch. 409. The New Act repeals the existing Marijuana Legalization Act, including its prohibition on refusing to hire or disciplining employees based on off-site marijuana use. Under the New Act, an employer:
- Marijuana in workplace. 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;
- Workplace policies regarding marijuana use. 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
- Discipline of employees. May discipline employees 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.
P.L. 2018 Ch. 409 § A-6; 22-B M.R.S. § 112. The Maine Department of Labor still allows for drug testing for marijuana pursuant to a drug-free workplace policy, but any drug testing must be in accordance with a drug testing policy approved by the Maine Department of Labor.
Employers should remain aware that Maine’s Medical Use of Marijuana Act (MMUMA) remains in effect. The MMUMA governs medicinal marijuana and prohibits an employer from refusing to hire or disciplining an applicant or employee based solely on that person’s status as a qualifying patient or caregiver, unless doing so would place the employer in violation of federal law or cause the employer to lose a federal contract or funding. 22 M.R.S. § 2423-E(2). The MMUMA also provides that an employer is not required to accommodate the ingestion of marijuana in the workplace or any employee working under the influence of marijuana. 22 M.R.S. § 2426(2)(B).
