CLIENT ALERT / The Maine Medical Marijuana Act and Employment Implications Print

Maine, as well as 18 other states, authorize prescribing and the limited possession of medical marijuana.  Maine’s law has been in effect since 1999, but until the Maine voters approved “An Act to Establish the Maine Medical Marijuana Act” on November 3, 2009, there was no mechanism for distribution.  The law was revised in 2011.  The employment implications are as follows:

Applicants and/or employees who are a “qualifying patient” and/or a “primary caregiver” cannot be discriminated against by an employer “solely for that person’s status as a qualifying patient or primary caregiver, unless failing to do so would put the [employer] in violation of Federal law or lose a Federal contract or funding”.  This latter language relates to Federally required drug testing (e.g. DOT) and employers who, through extensive regulations promulgated by the Federal Department of Labor, are required to comply with the Drug-Free Workplace Act of 1988.  However, an employer is not required to accommodate a qualifying patient by allowing them to either ingest marijuana in any workplace, or be under the influence of marijuana while working.

Employers who have drug testing programs, either via the Federal Government (for instance Department of Transportation regulations) and employers who have drug testing programs approved by the Maine Department of Labor, need to be careful about the implications of a “positive” drug test for marijuana.  By way of example, if a CDL driver/qualifying patient were to test positive for marijuana under Federal Department of Transportation guidelines, that employee would be taken out of service and, although the employer must refer the employee to a substance abuse professional (SAP), the employer may, but is not required to, terminate that employee.  However, Maine law precludes that person from being disciplined, unless it could be shown that the ingestion of the marijuana occurred at work or the employee was under the influence of marijuana at work.  While Federally-required drug testing policies preempt state drug testing policies, it’s unclear whether the discretion an employer has to discipline an employee for testing positive for marijuana for a Federal DOT-required drug test pre-empts Maine’s Medical Marijuana Act which specifically precludes “discrimination”.

Similarly, applicant and/or employee drug testing programs under the State of Maine Department of Labor involving applicants and/or employees who test positive for marijuana does not necessarily mean the applicant cannot be hired, or the employee should be referred for treatment if the positive test resulted solely from the lawful medical use of marijuana.  It’s unclear whether the Maine Department of Labor will amend drug testing regulations to provide for some incorporation of Maine’s Medical Marijuana Act.  In the meantime, healthcare professionals (medical review officers – MRO’s) who do drug testing for employers need to be cognizant of Maine’s medical marijuana laws.

Under normal circumstances, a Medical Review Officer (MRO) contacts an applicant or employee directly when a test is “positive” to ascertain whether there is a legitimate reason for the substance to be in their system.  If there is, the test is reported to the employer as negative.  If an applicant or employee test positive because of their authorized use of medical marijuana, and there is no evidence of ingestion of the marijuana at work or the employee being under the influence at work, those “positive” tests cannot be used to discipline or, in the alternative, provide treatment via an Employee Assistance Program (EAP) in accordance with the employer’s drug testing policy.  (Applicant drug testing allows for non-hiring of the applicant while employee drug testing under Maine law would require some initial treatment.)  Employer knowledge of a positive test for marijuana but based on the lawful use of medical marijuana creates employment risks insofar as this “knowledge” could lead to disability based claims, based on the underlying condition for which the patient is using medical marijuana.  Medical use of marijuana is only authorized for a “debilitating medical condition”.  Employers should contact their MRO provider to discuss processing positive tests resulting from the lawful use of medical marijuana.  Alternatively, Employers may exclude marijuana testing from its drug testing policy.

Complicating matters, possession of marijuana (medical marijuana or otherwise) is against the law under the Federal Controlled Substances Act.  However, the Obama Administration has instructed the US Attorney’s Office not to investigate or prosecute legitimate medical marijuana dispensaries.

In sum, Maine’s medical marijuana law:

  1. Does not require employers to accommodate an applicant and/or an employee by allowing them to ingest medical marijuana while at work;
  2. Does not require an employer to allow an employee to work under the influence of medical marijuana;
  3. Does not preclude employee discipline/termination if ¬not¬ doing so places employer in violation of Federal law, or causes employer to lose a Federal contract or funding;
  4. Does not require an employer to forego any safety precautions consistent with other controlled substances simply because the ingestion of medical marijuana was “medicinal”;
  5. Does not prohibit an employer from taking disciplinary action against an employee who has ingested medical marijuana while at work and/or is impaired by medical marijuana at work to the same extent that an employer would discipline other employees who use other controlled substance(s) or alcohol at work and/or who are impaired by controlled substance(s) or alcohol at work; and
  6. Suggests employers who have Federally-required or state-approved drug testing policies consider the implication of the non-discriminatory aspects of Maine’s law.

Employers are urged to review their handbook and procedures – especially drug testing protocols – in light of this law.

As always, feel free to contact any of the attorneys

at TMF to discuss this or any other legal matter.

 

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If you have any questions, please don’t hesitate to contact

any of the attorneys at TMF to discuss this or any other legal matter.

 
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