Maine’s Marijuana Legalization Act and the Delay of Certain Portions of the Act

JOSEPHINE ELIZABETH KENNEY

The tsunami of information available on medical and legalized/recreational marijuana notwithstanding, it is important to keep in mind that information in this area can and does shift rapidly.
The following two links will bring you to the latest information on Maine’s legalization law:

• https://legislature.maine.gov/legis/bills/bills_127th/billtexts/IB000601.asp
• http://legislature.maine.gov/ros/LawsOfMaine/#Law/128/R1/ACTPUB/1

Having checked with the Maine Department of Labor’s Team responsible for the Maine Substance Abuse Testing Programs, this writer can confirm that guidance on Maine’s legalization law, the Marijuana Legalization Act Section 1. 7 MRSA c. 417 is not yet available on the Maine Department of Labor Website http://www.maine.gov/labor/labor_laws/substance_abuse_testing/ . This is because the legal aspects of employment are not settled.

Although Maine’s Marijuana Legalization Act went into effect on January 30, 2017, on January 27, 2017 H.P. 66-L.D. 88, An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act  was approved by the Governor of Maine.  Of utmost importance to Maine employers is the moratorium delaying the enforcement of the challenging employment related provisions of the law until February 1, 2018. Section 2454 states:

§2454. Construction

1. Relation to the Maine Medical Use of Marijuana Act. This chapter may not be construed to limit any privileges or rights of a qualifying patient, primary caregiver, registered or otherwise, or registered dispensary under the Maine Medical Use of Marijuana Act.
2. Employment policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability 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.
3. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.
4. Person may not be denied parental rights and responsibilities or contact with a minor child. A person may not be denied parental rights and responsibilities with respect to or contact with a minor child as a result of acting in accordance with this chapter, unless the person’s conduct is contrary to the best interest of the minor child as set out in Title 19-A, section 1653, subsection 3.

The Maine Department of Labor team has been advising Maine employers to seek clarification/confirmation with their own legal counsel. They are suggesting that:
“Maine employers “stay the course” with regard to their substance use prohibitions in the workplace and substance abuse testing policies, since that section and its prohibitions will not be in effect until a year from now.”

Now, while the moratorium on implementation is in effect, is the time for Maine employers to weigh in and suggest language that could clarify or modify the following statutory language to make it more employer friendly.  As written, the following section could have negative impact for Maine employer’s Drug Free Workplace Programs.

No school, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

Now is also the time for Maine employers to avail themselves of the opportunity to receive impairment detection training and policy suggestions from Maine’s SafetyWorks! Program.  The Program’s Impairment Detection Training classes are filling up fast but Maine employers can learn more about this training and register at: http://www.maine.gov/tools/whatsnew/index.php?topic=Safetyworks_Classes&v=ListAll

Last but not least, this writer has also been informed by a Maine official that when terminating an employee in Maine,” use of recreational marijuana may or may not be regarded as misconduct; that there needs to be a clear relationship/nexus to employment. Employers need to have clear policies and communicate them to employees.”

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.