Written By ESR News Blog Editor Thomas Ahearn

On February 1, 2018, portions of IB 2015, c.5, “Question 1 – An Act to Legalize Marijuana” took effect in Maine requiring employers to stop drug testing job applicants for marijuana use and also preventing employers from firing workers 21 years or older for the use of marijuana outside of the workplace.

Maine voters approved Question 1 to permit the recreational use, retail sale, and taxation of marijuana in November of 2016. The law was originally scheduled to take effect January 30, 2017, but the Maine legislature imposed a moratorium on the retail sales and taxation of marijuana until February 2018.

Although the new effective date for the law has now passed, Maine has not yet finalized rules that will permit the retail sale of marijuana and marijuana products. But employers cannot discriminate against workers for their off-work use of marijuana even though the drug is still illegal at the federal level.

The portion of Question 1 dealing with discrimination reads: A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

However, the Question 1 does not permit the use of marijuana in the workplace and “does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”

In preparation for the change in the law caused by Question 1, “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,” according to analysis from employment and labor law firm Littler Mendelson P.C.

However, the law also does not affect compliance with federally mandated testing for marijuana such as the U.S. Department of Transportation (DOT) regulations for commercial motor vehicle drivers. The complete text of Maine’s IB 2015, c.5, “Question 1 – An Act to Legalize Marijuana” is available here.

In 1996, California passed Proposition 215 to be the first state to allow for the medial use of marijuana. As of February 2018, a total of 29 states and the District of Columbia allow for comprehensive public medical marijuana and cannabis programs, according to the National Conference of State Legislatures.

In addition, Alaska, California, Colorado, District of Columbia, Maine, Massachusetts, Nevada, Oregon, and Washington passed laws allowing for the recreational use of marijuana by adults. However, marijuana is still illegal under federal law so employers who drug test may understandably be confused.

“The national trend towards legalization of marijuana for medicinal and recreational purposes is a critical workplace issue for employers who drug test, especially where state laws conflict with federal law,” says Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen.

However, Rosen explains in his book “The Safe Hiring Manual” that the California Supreme Court determined in the case of Ross v. RagingWire Telecommunications, Inc. (2008) that an employee authorized to use medical marijuana could not state a cause of action for wrongful termination.

Rosen writes: “The court concluded that The Compassionate Use Act (another name for California Proposition 215) did not require California employers to accommodate the use of marijuana and reaffirmed that employers could take illegal drug use into consideration in making employment decisions.”

More Information about Marijuana Drug Testing

Employment Screening Resources® (ESR) is a leading global background check firm that offers pre- and post-employment drug testing solutions to help employers deal with conflicting federal and state marijuana laws. To learn more about drug testing from ESR, visit www.esrcheck.com/Background-Checks/Drug-Testing/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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