Employers in This State Can't Reject Job Applicants 'Solely' for Smoking Pot

​Editor's Note: Since May 2, a new law permits employers to enforce workplace policies restricting the use of marijuana and to take disciplinary action in accordance with those workplace policies, superseding the law written about in this article.

Maine employers can not reject job applicants or fire employees "solely" for testing positive for marijuana, according to the state's new recreational marijuana law, which went into effect Feb. 1.

The law prohibits employers from turning down applicants who use marijuana in their free time outside of work, whether they are using it for medical or recreational purposes, both of which are now allowed under state law. And a positive drug test alone will not be enough reason to discipline or fire an employee or to prove use or impairment on the job.

"Maine will become 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," said Melinda Caterine, an attorney in the Portland, Maine, office of law firm Littler. "It remains to be seen whether [these] provisions … will be enforced by the courts, especially given the conflict between federal and state law."

Under the law, employers in Maine can forbid employees from bringing marijuana to work and using it there. Companies covered under federal guidelines, such as federal contractors, and employers of certain types of workers such as commercial motor vehicle drivers and those in safety-sensitive positions still need to comply with federally mandated tests for marijuana use.

Laws in the nine other U.S. states and Washington, D.C., that have legalized recreational marijuana have not prevented employers from refusing to hire candidates who test positive for the drug, or from enforcing zero-tolerance anti-drug policies. 

"The big question now for Maine employers is what to do with a positive drug test," said Ann Freeman, an attorney and counsel in the Portland office of law firm Bernstein Shur. "Employers have had success in the other states defending adverse actions against applicants or employees who have tested positive. It may be more challenging in Maine."

The new law's language at least implicitly suggests that an employer should accommodate an employee's marijuana use so long as the use occurs outside of the workplace, which may conflict with employers' zero-tolerance drug-testing policies.

Then again, a violation of an employer's drug-free workplace policy may be enough to get past the "solely" language, Freeman said. "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."

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Workplace Drug-Testing in Maine

An employer that wants to screen workers for marijuana use must have a state-approved drug-testing policy, Freeman said. "If you want to drug-test applicants or employees, and aren't subject to mandatory federal testing requirements, you must have a policy that has been approved by the Maine Department of Labor."

The agency has developed testing policies employers can use as a template, but most Maine employers have opted not to apply for a sanctioned policy and therefore cannot drug-test applicants or employees. About 800 of Maine's 46,000 employers currently have a state-approved drug-testing program. That number has grown steadily since 1990, despite the state's restrictions on workplace drug testing.

Approximately 4.8 percent of job applicants and employees in Maine that were tested failed drug tests in 2016, a little higher than the national average of 4.2 percent. About 91 percent of Maine workers who failed a drug test in 2016 tested positive for cannabinoids, the active ingredient in marijuana.

Takeaways for HR

After the question of what action to take after an applicant or employee tests positive for marijuana, the next most frequent query Freeman receives is "Should we just stop testing for marijuana?" she said. "I've had clients say they are just going to drop marijuana from their testing protocols to make it less complicated. That is an option. A lot of it depends on the organization's workplace culture and weighing the risks of not testing for marijuana [use]—it is still unlawful under federal law."

So, does it make sense to continue to test for marijuana? Maybe, Freeman said. "It depends on the kind of work culture you want to set and on the type of work being done. Do you have safety-sensitive positions? Do you have workers driving vehicles that are not subject to federal transportation laws?"

She advised HR professionals to review and update both their company's general workplace drug and alcohol policy and its testing policy to reflect the changes. "Take a fresh look at the policies. Clear up any language. Send out alerts about the new law. Remind employees that they still can't be impaired at work and can't possess, distribute or use marijuana at work. I can guarantee that someone will come to work high and say 'But it's legal now, right?' "

Freeman recommended that until the courts or future legislation clarifies an employer's responsibility, organizations should pause and contact counsel prior to taking any adverse action against an applicant or employee who tests positive for marijuana.

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