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Maine Drug Testing Laws

Just like many other US States and countries all over the world, Maine voters have given the thumbs up to the legal consumption of marijuana for medical or recreational use. This happened as far back as 2016 and the new laws were supposed to be put into effect in January 2017. This did not happen because dissidents managed to pass emergency legislation just three days before the new law was introduced. In terms of this emergency legislation certain sections of the law was referred back to the legislature for review. The sections in question had mostly to do with the retail sale of marijuana and in due course, the reviews were done. But then the Governor vetoed the new law and the legislature sustained that veto.

Luckily for marijuana users, only those sections reviewed by the legislature was affected and the recreational use of marijuana finally became legal in February 2018.

What Are the Implications in Terms of Drug Testing?

When it comes to drug testing employees a few pertinent provisions of the law should be noted:

  1. Employers are not required to permit the use, sale or possession of marijuana at the workplace. Employers are permitted to implement policies that will ensure a drug free workplace. To this effect, they are also allowed to implement drug-testing policies and to discipline employees that are found to be under the influence of marijuana at the workplace.
  2. However, no employer is entitled to forbid any employee to use marijuana when he is not at the workplace.
  3. No employer may refuse to hire a marijuana user over the age of 21 solely because he uses it. To this end the Maine Department of Labor has prohibited pre-employment drug tests that includes marijuana as part of the array of drugs tested for.
  4. There are some companies that are subjected to mandatory drug and alcohol testing schedules enforced on a federal level. These employers are exempt from the provision of Maine's drug testing statutes. It is very interesting to note, however, that the Maine recreational marijuana law does not permit even these employers to initiate adverse disciplinary action against employees that consumed the substance in their free time.

The Dilemmas Faced by Employers

You might think that Maine employers are pretty much protected in the Maine recreation marijuana law but this is not the case. Yes, they may introduce a drug-free workplace policy and yes, they may take disciplinary action against employees under the influence of marijuana. Yes, they may ban the use or possession of marijuana at the workplace. But it is not as simple as that. Consider the difficulties facing employers:

  • You are allowed to implement a drug-free workplace policy and you may even test for drugs and alcohol. In the case of alcohol, clear legal guidelines exist to measure the extent to which the employee has consumed alcohol. Blood tests and breathalyzers are pretty conclusive. There are no such guidelines for measuring the extent to which an employee is under the influence of marijuana.
  • Then there is the problem of proving that an employee used marijuana in the workplace and not before he reported from work. There are no clear tests to determine just when someone used marijuana. The law is clear: marijuana is perfectly legal in your free time. The dilemma is also clear: how do you determine that the employee is under the influence of marijuana to the extent that he cannot perform his tasks responsibly?
  • Even the most liberal of employers must protect themselves against the actions of their employees. If a drunken bus driver, for example, causes an accident the employer is vulnerable to being sued for millions. Would you like a surgeon to perform a procedure on you while he is under the influence of any substance that may impair his abilities? No, of course not! The list goes on and on. So, what are these employers to do to protect their own legal positions, to honor the rights of their employees and at the same time take measures to make sure that their businesses operate within the law?

Is There Some Safe and Reasonable Middle Ground?

Employers, organizations representing employers and organizations representing employees all agree that the consumption of certain substances, such as alcohol, marijuana and opiates is not illegal. After all, employers also use alcohol and perhaps even marijuana! They all agree, however, that it is not consumption that poses the biggest problem. It is excessive consumption and addiction that are the biggest headaches.

Keep in mind that many substances, including marijuana can be detected days, even weeks after consumption. Employers that enforce drug-testing policies need to keep this into consideration. The flip side of the coin is this: if you consume alcohol or any other substance excessively shortly before reporting for work then you are still under the influence at the workplace. This is where the rights of the employer and those of the employee becomes a minefield.

The problem is not unique to Maine employers. There are many other states with marijuana use laws similar to the Maine law. It is very difficult to prove when an employee consumed marijuana (or any other substance) when he tests positive. After all, an executive that consumed two glasses of wine during a business dinner will most certainly test positive for alcohol!

Many employers sidestep the issue by rather disciplining employees that tested positive for charges related to negligence, contravention of safety rules, repeated failure to meet targets and so forth. These contraventions of company policies are all too often the direct result of the excessive consumption of substances. Employers that do pursue charges of being under the influence routinely get expert legal advice before proceeding.


The Maine recreational marijuana law is good news for many people that use marijuana for either recreational or medicinal reasons. Most of these users are responsible adults and it is only a small minority of excessive users and addicts that cause the controversy surrounding this topic.

Finally, it is worth noting that there are some employers that offer their employees access to rehab programs or counseling on a voluntary basis.