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Follow Up To February 8th Employer Update and Alert Maine’s Marijuana Legalization Act And Workplace Testing

By:
Josephine Elizabeth Kenney, J.D. MBA HR
Chief Global Compliance Officer

As explained in my prior blog on February 8, 2018, the Maine Department of Labor, Bureau of Labor Standards sets the requirements for employer workplace drug testing programs in compliance with Maine law. Information on program requirements, including any requirements that may arise from Maine’s Marijuana Legalization Act, can be reasonably expected to be documented on the Maine Department of Labor, Bureau of Labor Standards Website at  http://www.maine.gov/labor/labor_laws/substance_abuse_testing/index.html or through direct communication by that Department to employers that are authorized to conduct workplace drug testing as a result of having a policy on file as approved by the Maine Department of Labor, Bureau of Labor Standards.  As clearly stated on the Website:

Employers wanting to enact a drug testing program must have a policy approved by the Maine Department of Labor, Bureau of Labor Standards, with one exception.

A note on Maine employers with federally covered employees:
If an employer has any employees who are subject to a federally mandated drug-and-alcohol testing program working in Maine, that employer may expand the  federal testing pool to cover all employees and forego a policy with the State.

http://www.maine.gov/labor/labor_laws/substance_abuse_testing/index.html
Retrieved, February 27, 2018.

http://www.maine.gov/labor/labor_laws/substance_abuse_testing/applicant_model_policies.html, Retrieved, February 27, 2018.

As a follow up to the updating I have been sharing for Maine, and relative to my continuing attempts to obtain accurate information related to Maine marijuana testing requirements, following is an updated response from an official at the Maine Department of Labor (DOL) received by e-mail on February 27, 2018 after I informed the official that I had not received the call back promised from the Commissioner’s Office last Thursday, which was inquiring as to whether or why an official or source at the Maine DOL as quoted in an article published in The National Law Review stated as follows:

“The Maine Department of Labor is taking the position that employers may not test for marijuana as part of a pre-employment drug test.”

https://www.natlawreview.com/article/maine-recreational-marijuana-law-limits-workplace-drug-testing-well-disciplinary
Retrieved, February 27, 2018

Regarding policies approved in Maine as per a follow up inquiry to Maine DOL:
So, if a Maine employer with an approved plan should decide to remove marijuana from their approved Maine policy, they would need to file an Amendment and have that approved by DOL, correct? They would also need to notify their applicants and if they have an employee policy, their employees as well. Correct?

Maine DOL’s Official’s Response:
Any change in a State of Maine policy, must be sent to DOL for review and approval. Any time there is an update to a policy, the new approved policy must be given to all applicants prior to testing and employees prior to implementing the policy, in some cases 60 days prior to testing.

The following statement was released to me by e-mail, February 27th in response from the same Maine DOL Official in follow up to this writer’s call to the Maine DOL Commissioner’s Office on February 26th:

“In Maine, marijuana is still on the list of what can be tested.  Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL).  The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law.  Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.”

The specific criteria for policy approval by the State of Maine Department of labor is unknown to this writer. However, as per the statement received by e-mail on February 27th from an official at the Maine DOL foregoing, as long as a particular substance is on the list of substances that can be tested, which marijuana is per the statement this morning, an employer policy submission would not be disapproved on that basis. Also, if an employer has a Maine Policy approved by the Maine DOL, that policy would be considered valid unless the Maine DOL formally advises the Maine employer otherwise or the Maine employer requests an Amendment to exclude marijuana from its approved Maine Policy.

It should be noted that very few First Advantage customers have excluded marijuana from their drug testing panel at this point in time and no customers with addresses in the State of Maine have done so.

The foregoing blog is not offered as legal or scientific advice but is instead offered for informational purposes.  First Advantage is not a law firm or medical provider and does not offer legal, medical or scientific advice.  The following article is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide scientific advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Product related, legislative, regulatory and case law developments regularly impact on general research and the science in this area is evolving rapidly. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Product related, legislative, regulatory and case law developments regularly impact on general research and the science in this area is evolving rapidly.

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