BLOG

Maine is now the first state to prohibit employers from taking adverse action against employees or applicants who use marijuana.

About the Law

The Maine State Legislature passed a bill that will be known as the Marijuana Legalization Act. It prohibits employers from taking adverse actions against job applicants or existing employees if they test positive for marijuana. Applicants may not be denied employment and existing employees cannot be disciplined, overlooked for promotions or otherwise negatively affected because of marijuana usage.

This law stipulates that marijuana usage can occur during a person's time outside of the work environment. Employers can still prohibit employees from using marijuana while on the job or bringing it into the workplace.

Employers with Zero Tolerance Drug Policies

Some employers have zero-tolerance policies for job seekers and current employees. This new law directly conflicts with such policies. It does specifically state that adverse action cannot be taken "solely" because of a marijuana usage. This has led to speculation that some employers may find ways to continue their zero-tolerance policies.

In an article published by the Society for Human Resource Management, Maine-based attorney Ann Freeman stated: "An employer could argue that they are not taking this adverse action just because someone smoked pot on their own time-they are taking the action because the employee violated the employer's policy."

If an employer wants to screen employees for marijuana, they must first be granted a state-approved policy. The Maine Department of Labor developed a template for this scenario. It has existed for many years, but until now only a small percentage of Maine employees have utilized this option. More employers may issue requests to take advantage of this policy to in the hopes of continuing to enforce their zero tolerance drug policies.

Federal Exceptions

Positions that have federal regulations may be exempt from this law. Individuals who are working under federal contracts will still have to comply with federally-mandated laws that cover marijuana usage.

Whether or not any federal laws will impact employees who are not working under federal contracts remains to be seen.

Takeaway for Maine Employers

Employers in Maine should be aware of this law and prepared for compliancy. Some businesses may have situations that can be exceptions to the law - such as the previously mentioned federal exemptions and for positions that are safety-sensitive - but they must handle such situations in a compliant manner.

Businesses that operate in Maine are encouraged to review their drug screening policies and make updates as necessary. Individuals who work in Human Resources should be made aware of this law and receive updated versions of internal screening policies. This documentation can include language that stipulates marijuana usage is only allowed outside of work hours. Nothing in the law allows employees to intake marijuana or be impaired in any way due to drug usage while on the job.

Keeping up with laws that govern the hiring process can be difficult. At Backgrounds Online we strive to stay informed about all laws that affect our customers. We provide educational resources and are also available to help via phone, email or chat. If you have questions about how we can help with your screening and compliance efforts, please contact us.