An important provision in the recreational marijuana ballot initiative approved by Maine voters back in November has so far generated limited buzz among Maine employers, but they will need to pay closer attention now that key portions of the law are set to take effect in just a few weeks on January 30, 2017. Specifically, the initiative makes it legal for Mainers age 21 or over to possess up to 2.5 ounces of marijuana for personal use and to keep and cultivate up to six adult marijuana plants. While employers may take solace in the fact that the initiative expressly exempts them from having to tolerate marijuana use, possession, transport or employees being under the influence of marijuana in the workplace, employers need to be aware that the law also prohibits them from refusing to employ or otherwise penalizing persons 21 years of age or older solely because the person uses marijuana recreationally outside the employer’s property. 

Of the eight states and Washington D.C. to have joined the growing list of jurisdictions legalizing recreational use during the November 2016 elections, Maine is the only state to have a provision like this providing affirmative protection for recreational users. The provision raises serious questions, including how to address job applicants or current employees who test positive for the presence of marijuana, with which Maine employers will need to grapple when the initiative goes into effect. In the event of a positive test, unless an employer has evidence that the applicant or employee was in possession, using or was under the influence of marijuana while in the workplace, the new law will prohibit the employer from taking any adverse action.

Employers will also need to be careful with how they discipline and make other personnel-related decisions affecting employees who the employer knows use marijuana recreationally to avoid the appearance that the employer is being motivated by employees’ marijuana use as opposed to legitimate business reasons under Maine law, such as performance. There is also a possibility that an employee could claim he or she has been unfairly targeted by his or her employer if the employer knows that the employee is a recreational marijuana user and the employer selects him or her for random testing on that basis. 

At last count, Maine lawmakers have introduced over 50 different proposals that would modify the new initiative, including delaying the date licensed retailers can begin selling marijuana to the public. Though some aspects of the initiative, therefore, remain uncertain, what is certain is that as of January 30, 2017, when recreational use will no longer be illegal, Maine employers will need to treat marijuana differently than they do other drugs. While their ability to keep the workplace itself drug free will not change, the extent to which they can base personnel decisions on employees’ out-of-work drug use will be significantly curtailed. Maine already has a comprehensive regulatory framework, overseen by the Maine Department of Labor, governing applicant and employee drug testing by private employers. That framework will likely be modified in light of the newly-enacted initiative, and employers will want to pay close attention for subsequent updates.