Not every employer can just demand that workers take a drug test. And those that can need to have a state-approved plan, outlining exactly when and how drug tests can be done.
If recreational marijuana becomes legal in Maine, it won’t change any of that. Employers could decide that any positive test for marijuana is grounds for firing, just as with alcohol.
But legalization would almost certainly add momentum to a years-long effort by the Maine Department of Labor and employer groups to reform the state’s drug testing laws, making drug testing less onerous for employers. That effort was prompted in part by the expansion of Maine’s medical marijuana program in 2009 and the rising regional opioid crisis of recent years.
Overall, past efforts have sought to relax current restrictions on drug testing, such as allowing employers to require tests in response to a workplace accident (the first accident is exempt under current law) and to lower the bar for employers who can institute random drug-testing programs (it’s now for employers with 50 or more workers).
Groups advocating for workers have argued some of the changes would weaken employee protections. Supporters of the reforms argue the system discourages employers from keeping employees and directing them to rehab, and that it is out of sync with other states and with changes to health insurance policies under the Affordable Care Act.
Most employers in the state, especially small employers, don’t have active drug-testing policies. But about 534 did as of the last tally in January, allowing either the screening of new applicants, testing of existing employees in response to an event in the workplace, or random employee testing. Each of those different types of tests are governed by different rules.
Search employers who had active state drug-testing policies, as of January 2016, below.
A separate group of employers is regulated by specific federal agencies, including those that work under federal contracts or where safety or security are essential to the job. They are required to have a drug-free workplace, as defined in federal law.
Marijuana remains an illegal schedule 1 drug under federal law.
Recreational, and particularly medical, marijuana present a lot of legal gray areas for employers and employees, especially when it comes to testing. While testing positive for marijuana doesn’t indicate impairment in the same way as for alcohol (which metabolizes faster and is detectable in the blood for a shorter period of time), formal drug-testing programs provide some structure for businesses making employment decisions based on perceived impairment at work.
And despite the restrictions on drug-testing programs, employers have increasingly turned to them. The number of companies with state-approved drug and alcohol screening and testing programs has grown steadily since 1990, according to the Department of Labor’s 2015 annual report.
If voters approve recreational marijuana on Election Day, it’s likely to add pressure on lawmakers to make for-cause and random drug testing easier for employers to implement, and for that group of employers to continue to grow.