When the calendar flipped over to February just a few days ago, Maine became the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products, provided the use occurs away from the workplace.
That’s according to a new piece by Littler on the topic, which says the Maine Department of Labor has removed marijuana from the list of drugs for which an employer may test in its “model” applicant drug-testing policy.
(In November 2016, Maine voters approved the act, permitting the recreational use, retail sale and taxation of marijuana, but a just-ended moratorium was enacted to provide additional time to create rules on marijuana sale and taxation, and to resolve other outstanding issues.)
Significantly for employers, Littler says, the anti-discrimination provisions of the act prohibit employers from refusing to employ or otherwise penalize any person age 21 or older based on that person’s “consuming marijuana outside the … employer’s … property.” However, regardless of where marijuana is consumed, the legislation 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.” According to a spokesperson from the Maine Department of Labor who spoke to the legislature in July, a positive drug test alone will not suffice to demonstrate that a worker was “under the influence” of marijuana.
Dale Deitchler, a shareholder in Littler’s Minneapolis office and co-author of the piece, says that while there’s nothing quite like Maine’s law anywhere in the union, it’s likely to stay that way.
“The general trend is toward legalization of marijuana both recreationally and medically,” he says, “but I don’t expect an onslaught of states in the near future following suit to include anti-discrimination provisions in their laws similar to the Maine Marijuana Legalization Act, particularly given the approach of the current administration’s Attorney General’s approach of strict enforcement of the federal Controlled Substance Act.”
At a 60,000-foot level, Deitchler says, the main HR challenge is that the various laws “legalizing” marijuana recreationally and medically at the state and local levels are not generally amenable to a one-size-fits-all nationwide employer policy/practice approach.
There are multiple considerations for employers in Maine that may want continue testing applicants for marijuana, he says, “ranging from whether an employer wants to be a ‘test’ case to adverse media attention to risk tolerance for the potential that a marijuana-impaired employee could cause irreparable and catastrophic loss.”
But overall, the act doesn’t change Maine employers’ rights to keep and maintain a drug-free workplace, said Alysia Melnick, policy director for the Campaign to Regulate Marijuana Like Alcohol. Melnick told the Portland (Me.) Press Herald last fall as the issue was put to voters: “Maine is and will continue to be an at-will state, meaning employers can terminate employees for just about any reason. If an employer had concerns about an employee’s performance or an employee was impaired on the job, they would continue to be within their rights to terminate that employee.”
Melnick said the initiative says that employers cannot discriminate against employees who use marijuana, but that doesn’t mean they have to hire them if they can’t pass a drug test.
“If someone is not performing their job well or seems impaired or is doing anything else that would cause an employer to fire them, they’d still be allowed to let them go,” she said. “What they can’t do is fire someone solely on their use of marijuana outside of the workplace.”
Meanwhile, Jim Reidy, a New Hampshire attorney who specializes in labor and employment law and is a member of the Society for Human Resource Management, told the Press Herald that HR officials are still in two modes: catch-up and reaction.
“We’re in an interesting time when there’s a culture clash between individual rights and the rights of an employer to govern its rules of conduct and its expectation with regards to employees. We’re in a culture war between individual rights and the rights of the employers.”
Littler notes that, given the current posture of the law, employers with lawful workplace drug-testing policies implemented in accordance with Maine law will need to assess compliance approaches, risks and risk tolerance in connection with marijuana-policy prohibitions, continued marijuana testing and adverse action, if any, based on verified confirmed positive marijuana test results. The 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.
And it remains to be seen whether the non-discrimination provisions contained in the law will be enforced by the courts, the Littler report notes, “especially given the conflict between federal and state law.”
More information can be found at the recreational marijuana web page established by the Maine legislature.
