Last November, Maine was one of four states in which voters approved a new recreational marijuana law. Maine’s law took effect on January 30, 2017; however, emergency legislation passed on January 27, 2017 delayed the implementation of certain provisions of the law.  Specifically, the emergency legislation:

• Delayed the effective date of most of the provisions of the law (including the anti-discrimination provisions, discussed below) until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana;
• Clarified that possession of a usable amount of marijuana by a juvenile is a crime, unless the juvenile is authorized to possess medical marijuana; and,
• Prohibits possession of any edible retail marijuana products until February 1, 2018.

Maine’s recreational marijuana law provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing or marijuana in the workplace, and also are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.  But the law prohibits employers from “refusing to employ a person solely because that person consumed marijuana outside the employer’s property.”  This language is problematic for employers who conduct drug testing because a drug test does not reveal when or where someone used marijuana.  It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property” because marijuana can stay in the human body for days or even weeks.  This language will make it difficult for Maine employers to conduct drug testing for marijuana, particularly in the pre-employment context.  Even if a Maine employer suspects that an employee is “under the influence of marijuana in the workplace,” the drug test result will not provide conclusive proof that the marijuana was consumed at work.

The Maine legislature has formed a committee to consider implementation of the recreational marijuana law and it is hoped that the anti-discrimination language will be revised.