🔒What employers should know about Maine’s new marijuana rules

At the Augusta Civic Center last November, regular folks from across the state gathered under a tent to compare marijuana buds and inhale marijuana through vaporizers during a medical marijuana trade show. In homes across the state, cancer patients and individuals with other debilitating medical conditions use medical marijuana regularly and in compliance with state law. Most of these folks have jobs, and as their numbers grow, issues related to their use of medical marijuana are showing up in the workplace.

Maine's Medical Use of Marijuana Act decriminalizes the use of marijuana for certain medical purposes. Under MUMA, qualifying patients may use, and their caregivers may cultivate, medical marijuana in conformity with state requirements. A qualifying patient is one who has been diagnosed with a debilitating medical condition, such as cancer or glaucoma, or an otherwise chronic or debilitating medical condition that produces long-term pain, severe nausea or other similar symptoms. MUMA provides certain express employment protections for qualifying patients and caregivers, while also supporting an employer's right to a drug-free workplace. Maine's Department of Health and Human Services oversees the program, but neither DHHS nor the Department of Labor has provided any additional guidance for employers wrestling with its practical impacts.

Employers must rely on common sense interpretations of the law, as well as the few rules set forth in the statute:

• Employers cannot terminate or take adverse action against employees simply because of their status as qualifying patients or caregivers. However, employers operating under federal contracts, grants or certain regulatory requirements may discriminate on the basis of status if employing such persons would put the employer in violation of federal law. However, very few federal programs would require an employer to discriminate based solely upon status.

• Employers can terminate employees occupying safety-sensitive positions if those employees test positive for marijuana after a workplace drug test, regardless of whether the employee was impaired at work. Before taking adverse action in this situation, however, employers should first ensure that the position is properly classified as “safety-sensitive,” and, if so, determine whether removal from the position, which is usually required by federal law, would be a more appropriate response than termination. If the position is not safety sensitive or otherwise federally regulated, the appropriate response is not clear.

• Employers do not have to accommodate the ingestion of marijuana in the workplace. Employers should continue to enforce their drug-free workplace policies, even with respect to qualifying patients. They can also refuse a disability accommodation request if the employee is asking to ingest marijuana during working time.

• Employers do not have to tolerate an employee working while under the influence of marijuana. Further, the statute does not protect anyone who undertakes a task under the influence of marijuana in a way that constitutes professional malpractice or otherwise violates a professional standard. Employers, therefore, can terminate employees who show up for work under the influence, whether or not those employees used marijuana off site in compliance with MUMA.

However, employers should be cautious when using drug test results to prove an employee is under the influence. A positive drug test does not necessarily show an employee is under the influence of marijuana. Marijuana remains in a person's system long after the high has worn off. In addition, the phrase “under the influence” is not defined in the statute. The appropriate response to a positive drug test will depend on many factors, and the facts of each case must be analyzed carefully.

Medical marijuana on the job

Clearly, employers can prohibit the use of marijuana in the workplace and prevent employees from working while under the influence. However, suppose a disabled employee asks her boss to overlook a positive drug test as an accommodation for her off-duty use of medical marijuana? Assume she has never shown up for work under the influence or ingested marijuana at work and her work performance has been unaffected by her off-duty use of marijuana.

Federal disability law does not require employers to accommodate illegal drug use, and marijuana remains an illegal drug under federal law. However, the answer under the state disability discrimination law is less clear. Interestingly, Compassionate Caregivers of Maine, a local nonprofit, asserts that qualifying patients cannot be terminated simply for testing positive for marijuana. While there is no legal precedent to support this view, CCM's position highlights the uncertainty surrounding this issue.

Employers should carefully review their workplace policies and consult with counsel when confronted with any issue related to an employee's use of medical marijuana.