Legal Alert! Workplace Implications Of ME’s New Recreational Marijuana Law

At the polls this past November, Mainers voted to legalize recreational marijuana use for adults over the age of 21.  The law is set to take effect January 30, 2017.  Employers should be thinking about what the legalization of recreational marijuana means for their workplaces and consider updating their policies to reflect the new law.

What the recreational marijuana law says about employment

The text of the ballot measure and the official summary did not mention employment. However, the full text of the law specifies that employers and schools “may not discriminate” against or “otherwise penalize” a person “solely for that person’s consuming marijuana outside of the school’s [or] employer’s…property.”

The new law does, however, include protections for employers.  An employer is not required “to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace.”  It specifically protects the right of employers to “enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”  It is important to note that ME’s medical marijuana law includes similar protections for employers.

What employers should do in response to the recreational marijuana law

Employers would be well advised to revisit their drug and alcohol policies, which should already ban the use, sale, transfer or possession of alcohol or illegal drugs, and prohibit employees from being under the influence of alcohol or illegal drugs, while on employer property, work duty, and breaks.  Consider updating your policy to specifically address recreational marijuana (and medical marijuana, if you have not already) so there is no confusion among employees.

Employer drug policies can (and, we would advise, should) extend the prohibition on alcohol/illegal drugs to include medical and recreational marijuana even though they are now legal under state law.  Marijuana is still illegal under federal law, and just because something is legal under state law – i.e., an individual cannot be criminally liable for its use – does not mean that an employer cannot limit its use in the workplace.  ME’s new law recognizes this by allowing employers to restrict the use, possession, etc. of marijuana in the workplace.  Note that employers that receive federal funds and are subject to the Drug-Free Workplace Act of 1988 are, in fact, required to prohibit the use/possession of federally controlled substances on their premises.

In situations where an employee is in a safety sensitive position (e.g. driving), employers may also want to consider a ban on administering marijuana X number of hours prior to the employee’s shift.  This approach essentially builds in a presumption that an employee is “under the influence” if she or he administers marijuana within the prohibited timeframe.  Employers may also want to consider a requirement that employees and their effects may not emit the odor of marijuana (or any other illegal drug or alcohol) in the workplace.

Of course, employers that have Zero Tolerance/drug testing policies will have a more stringent set of standards.  Such policies may conflict with the ME law if drug testing reveals the lingering presence of marijuana in situations where employees use marijuana on their own time outside of the workplace.  The ME laws “may not discriminate” clause does include an implicit suggestion that an employer should accommodate an employee’s use that is legal under ME law so long as the use occurs outside of the workplace.  While there is currently no conclusive precedent in this jurisdiction and the legal landscape remains uncertain, courts in other jurisdictions have upheld such policies that conflict with similar state laws due to the fact that marijuana is still a federally banned substance.