Maine House Overrides Governors’ Veto to Make Marijuana Law More Employer Friendly

Maine House Overrides Governors’ Veto to Make Marijuana Law More Employer Friendly

On May 2, 2018, the Maine House and Senate voted overwhelmingly to override Governor Paul LePage’s veto and passed LD 1719, which establishes rules for licensing and regulating marijuana producers, processors, retail establishments, and more. “An Act to Implement a Regulatory Structure for Adult Use Marijuana” provides additional clarity to the rules related to marijuana and the workplace in the state.

In part, the new law states in section §112. Employment policies

Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer:

  1. Marijuana in the workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
  2. Workplace policies regarding marijuana use. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace

or while otherwise engaged in activities within the course and scope of employment; and

  1. Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.

The Maine Department of Administrative and Financial Services, responsible for the administration of this law, is directed to consult with the Department of Labor “prior to the adoption of any rules concerning workplace, employment or other labor matters involved in the regulation of adult use marijuana and adult use marijuana products.”

The previous version of the personal marijuana use implementation law contained an anti-discrimination provision that stated that employers “may not refuse to . . . employ . . .  or otherwise, penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the . . .  employer’s . . .  property. While it is not clear that this issue has been fully addressed the new version of the law clearly states, “May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment.” With the wording ‘in the workplace’ it would appear that the ‘while working’ aspect has been addressed, however, what employers are allowed to do with an employee who comes to work under the influence of marijuana used outside of the workplace still potentially remains and open question.

Although the latest legislative action is an attempt to correct the governor’s veto, what remains to be seen is how this law will be interpreted.  While it seems that §112 of the new enabling law opens the door to employer drug testing programs and discipline for violation of those policies, you will note that employer actions are limited to conduct within the workplace. This new law doesn’t prohibit discipline for an employee’s use of marijuana “outside the employer’s property.”

Further clouding the issue is the reality that Maine is the only state (at this moment) authorizing the medical and personal use of marijuana and with a very detailed mandatory workplace drug testing law.

I guess we will just have to wait and let the lawyers sort this one out.

To read the full act go to – An Act to Amend the Marijuana Legislation Act