Workplace Drug Testing Issues – Maine State Laws
These categories do not effect DOT-regulated drug testing. Government employers should always call for potential additional restrictions on employee drug testing.
Alert – Effective 02/01/2018 employers should use caution and seek legal advice regarding pre-employment and random drug testing for Marijuana due to the Maine voters “Question 1 – An Act to Legalize Marijuana” (“the Act”). See more below about Maine and Marijuana.
Employers wanting to enact a drug testing program must have a policy approved by the Maine Department of Labor, Bureau of Labor Standards. Maine Statute on Substance Abuse Testing – Title 26, Chapter 26, Subchapter 3-A.
New law effective May 2, 2008 – removes the prior law’s prohibition on employers taking disciplinary action for marijuana use away from the employer’s premises. A written drug testing policy is critical to avoiding liability in Maine.
Workplace Drug Testing Laws in Maine
|Drug Testing Issue||Status||Comments|
|Instant or POCT||Restrictions||Instant testing for pre-employment only. A non-negative result must always be sent to a certified laboratory for confirmation. Follow specific Main Substance Abuse Testing Statute.|
|Drug Panels||No Restrictions|
|Laboratory||Certification Required||By the Maine Department of Health and Human Services|
|Random Testing||Highly Restricted||Only if an approved policy permits random testing; safety sensitive or over 50 employees.|
|Post-Accident||Caution||Follow an approved policy.|
|Reasonable Suspicion||Caution||Follow an approved policy.|
|Oral Fluids||Restricted||Maine Department of Labor states it will be approved when SAMHSA approves oral fluid. No other mention in Maine laws of any restrictions on oral fluid.|
|Hair Testing||Permitted||Maine law specifies cut off levels for each specimen type.|
|Unemployment Denial||Yes||Terminate for misconduct which includes intoxication while on duty or when reporting to work, or unauthorized use of alcohol while on duty, as well as using illegal drugs or being under the influence of such drugs while on duty or when reporting to work.|
|Workers Comp Discount||No|
|Intoxication Defense||Yes||Claim can be denied when the injury or death of an employee when the injury resulted from the employee's intoxication while on duty.|
|Medical Marijuana||Yes||An employer is not required to accommodate use of marijuana.|
|Recreational Marijuana||Yes||Passed November 2016, effective February 1, 2018. See additional comments below. The law prohibits employers from taking adverse employment actions for off-premises marijuana use.|
|Report Driver DOT Positives||No|
|General Statute||Generally speaking, there are two kinds of drug testing policies in Maine: applicant and employee|
Intoxication Defense – Denial of Workers Compensation Claim - States vary in their willingness to allow employers to use an injured worker's intoxication as a defense against a claim for compensation. State laws' intoxication defenses generally fall into one of three rough categories: defenses that do not depend on causation; defenses that require some form of proximate causation between intoxication and injury; and defenses that require that intoxication be the sole cause of injury. Always check with your insurance company and your attorney when you have a refusal or positive post-accident test after an injury.
Employers in Maine must use extreme caution when terminating an employee or not hiring an applicant due to a positive drug test for marijuana. Maine’s recreational marijuana law impacts workplace drug testing.
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.
This chart is intended for informational purposes only and should not be relied upon for legal guidance. State and local law varies greatly; therefore, you are advised to consult experienced legal counsel during the development or edit of your actual substance abuse testing program and with any questions that follow.
State Law Maine