Maine Recreational Marijuana Statute Answers Some Questions for Employers but Raises Others

After more than a year of political wrangling, on May 2, 2018, the Maine Legislature overrode a second veto by Governor LePage and enacted the Marijuana Legalization Act. The Act modifies the legislative framework created by Question 1, the voter referendum passed in November 2016, which first legalized the possession, use, and cultivation of marijuana for adults in Maine without a qualifying medical condition under the existing Maine medical marijuana laws. The Act requires licenses for the cultivation and sale of recreational marijuana and allows for the limited possession, cultivation, and use of marijuana by adults aged 21 and over. Because it was passed as emergency legislation, it went into effect immediately.

Medical Marijuana Rules Unchanged
Notably, the Act does not substantially affect the existing medical marijuana framework in Maine. While employers are likely already familiar with most of these provisions as they pertain to the workplace, in summary, the medical marijuana statute:

• Prohibits employers from refusing to employ or otherwise penalizing employees and applicants solely on the basis of their status as a medical marijuana patient, with limited exceptions where such employment would have adverse consequences under federal law; but
• Allows employers to restrict employees from using or being under the influence of medical marijuana in the workplace.

Effect on Workplace Marijuana Rules
The Act takes a somewhat different approach to employment rules regarding recreational marijuana and also modifies certain aspects of Question 1 that had previously been in place for employers. Most significantly, the Act scrapped the anti-discrimination provision from Question 1, so it no longer expressly prohibits employers from refusing to employ persons who use recreational marijuana outside of work. 

Instead, the Act states that employers “are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana in the workplace” and allows employers to “enact and enforce workplace policies” restricting marijuana use “in the workplace or while otherwise engaged in activities within the course and scope of employment.” The Act also allows employers to discipline employees who are under the influence of marijuana at work. Accordingly, it is clear that employers may prohibit all recreational marijuana-related activities in the workplace and during work-related activities, provided that they have clearly articulated policies in place.

While the Act allows employers to make and enforce work rules and discipline employees for violating policies with respect to marijuana use, possession, and impairment in the workplace, to avoid ambiguity, employers will need to have clear and specific policies in place regarding what is and is not acceptable. We recommend that employers carefully review their existing workplace drug policies to ensure that marijuana use, possession, and impairment are expressly prohibited both in the workplace and when performing work-related duties outside the workplace, and providing that an employee who violates these prohibitions is subject to discipline, up to and including termination.

Employer Regulation of Marijuana Usage Outside Work is Unclear
Unfortunately, the Legislature did not address the issue of what rules, if any, an employer may enforce with respect to an employee’s lawful use of marijuana outside the workplace. While the Act is silent on this issue, the deliberate removal of the anti-discrimination provision from Question 1 suggests that employers need not tolerate marijuana usage outside of work.  On the other hand, the Act’s silence on this issue and its use of the qualifier “in the workplace,” in the provisions stating that an employer may enforce rules against marijuana usage, creates an ambiguity. By including that qualifier, does the Act imply that employers may not enforce rules restricting marijuana usage that is not “in the workplace”? 

While this remains an open question, we believe the better interpretation of the Act is that it did not alter the common law “at will” employment doctrine merely by implication. If the Legislature intended to alter the general rule that an employer may terminate an employee for any non-discriminatory reason—including off premises marijuana use—it would have been explicit in doing so. However, we expect that there may be additional clarification of this issue in future amendments to the Act, and it is always possible that a zealous plaintiffs’ lawyer may argue that discipline for marijuana usage outside of work is unlawful.

Pierce Atwood employment lawyers are monitoring the latest developments in this area, and are available for consult should an employer consider taking any adverse action against an employee for off-premises marijuana use.

For questions on marijuana use in the workplace, updating employee handbooks, or any other employment-related issue, please contact Dan Strader, the author of this alert, or Jim Erwin, Chair of Pierce Atwood’s Employment Practice Group. Dan can be reached at 207.791.1202 or dstrader@pierceatwood.com, and Jim can be reached at 207.791.1237 or jerwin@pierceatwood.com.