Maine Delays Recreational Marijuana Law’s Anti-Discrimination Provisions

By Dale Deitchler and Mindy Caterine © Littler Mar 20, 2017

On Nov. 8, 2016, Maine voters approved "Question 1"—An Act to Legalize Marijuana (ALM).  "Emergency" legislation since passed by the Maine legislature and signed by Gov. Paul LePage now provides employers with operations in Maine a temporary reprieve from complying with the anti-discrimination provisions of the ALM until Feb. 1, 2018. 

As approved, the act generally allows persons 21 years of age or older to use or possess up to 2.5 ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person's residence, up to 6 flowering marijuana plants (and up to 12 immature plants). 

The act also legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities.  

Significantly for employers, the act is the first law of its kind in the United States establishing express recreational marijuana anti-discrimination protections. Specifically, the act prohibits employers from refusing to employ or otherwise penalizing any person 21 years of age or older based on that person's "consuming marijuana outside the … employer's … property." 

The act does allow 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."

Following a recount and certification of election results, the ALM was to have become fully effective on Jan. 30.  Instead, on Jan. 27, Maine passed An Act to Delay the Implementation of Certain Portions of the Marijuana Legalization Act (LD88).  LD88 delays the effective date of most of the provisions of the ALM (including the anti-discrimination and other employment law provisions), to Feb. 1, 2018. 

The delayed effective date does not apply to most of the personal use and possession provisions, except those pertaining to "retail" purchases of marijuana.

Recreational Use Only

It bears emphasis that the temporary reprieve from the ALM's anti-discrimination prohibitions relate to recreational marijuana use only.  

Maine employers must continue to assess and evaluate employment law compliance approaches and requirements under Maine's medical marijuana statute, which the LD88 did not affect. 

In addition, when the recreational marijuana law becomes effective on Feb. 1, 2018, unless there are additional changes, Maine will again be the first state to offer employment law protections to workers who engage in recreational marijuana use "outside" of an employer's "property." 

If that occurs, the anti-discrimination provisions of the Maine recreational marijuana law will have to be reconciled with the provision allowing employers to discipline employees who are "under the influence of marijuana in the workplace" (which suggests a lower misconduct and proof standard than "impairment").  Stay tuned in 2017 as the Maine legislature grapples with the complex issues surrounding full implementation of the law.

Dale Deitchler is an attorney with Littler in Minneapolis. Mindy Caterine is an attorney with Littler in Portland, Maine. © Littler. All rights reserved. Reposted with permission.

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