This February, a new recreational marijuana law is planned to go into effect in Maine. Supporters of the legislation claim the law leaves employer protections in place allowing them to continue policies that help create and maintain a drug-free workplace.
Not so fast. According to a recent article published in the Portland Press Herald, Maine’s Department of Labor (DOL) says the majority of employers in the state won’t be able to terminate an employee who tests positive for marijuana unless they can prove the worker was impaired on the job.
If this stands as policy, this will present a challenge for employers. Consider an employee who tests positive for recreational use of marijuana, which is legal in the state. The company later fires the worker for poor job performance. In turn, the individual sues the employer, claiming the firing resulted from the drug test versus work-related issues.
Alarm bells may be setting off in human resource departments throughout the state, pushing them to review their progressive discipline policies. Likewise, applicants who test positive for the drug can’t be rejected since they may be using the drug for medical reasons.
Approximately 800 of the state’s 46,000 employers implemented a state-approved drug-testing program, states the article. Last year, 4.8 percent of job applicants and employees failed drug tests. The national average is 4.2 percent. Of those who failed, 91 percent tested positive for cannabinoids, which is the active ingredient in marijuana.
This type of legislation has many twists and turns. Employers can reject candidates who apply for jobs with high safety standards, such as forklift drivers, that fail drug tests. But if someone gets laid off from such a job and collects unemployment, “. . . they shouldn’t be allowed to use cannabis while out on unemployment because it means they’re unlikely to get another job,” states Julie Rabinowitz, the DOL’s director of policy, operations and communications. ‘That would qualify as a refusal to work, which is unemployment fraud.”
However, if the employee participates in the state medical marijuana program, they may be eligible for company benefits, which include medical marijuana.
Is your head hurting yet or perhaps spinning? As many lawmakers are discovering, crafting marijuana laws that are fair to employers, keep workers safe and protect worker rights, especially those who use the drug for medicinal purposes, is an evolutionary process.
Back in Maine, the State Supreme Judicial Court is expected to make a decision about a case involving a worker at a paper mill. At issue is if the company or its insurer should pay for marijuana prescribed for the employee who injured his back on the job in 1989.
Apparently, traditional pain medications did not provide relief. One fact that can’t be ignored is when the employee began using medical marijuana in 2012, medical expenditures dropped by 88 percent.
Maine has also delayed retail sales of recreational marijuana until it can set rules and establish a licensing system. But the legislature has already made three changes since the referendum was approved: it prevented sales to people under the age of 21; changed the state agencies monitoring the industry and, established testing standards for recreational marijuana.
What will happen next is anybody’s guess. This is all new territory for workers, employers and legislators. The only certainty is that the boundaries of marijuana laws or policies will be stretched and tested by all sides in the coming years. This is one area you’ll want to keep an eye on.