Some Thoughts for Maine Employers on Marijuana Legalization

Thursday, December 8, 2016

[The following comments were originally delivered at a breakfast briefing on December 7 in Portland sponsored by Clark Insurance and KMA Human Resources Consulting.]

If we assume that the Question 1 referendum recount does not change the outcome, Maine’s 128th Legislature will begin the process of hammering out a new statutory regime to accompany legalization in 2017.

At the present time, no one can reasonably predict how the post-referendum statute is going to read and whether it is going to provide clear guidance so Maine employers can navigate risk management issues and adequately address legal compliance questions.

It’s a trap to think that here in Maine we can look at how things are being handled in Colorado, for example, and use employers’ experiences there for determining how best to proceed.

Although in June 2015, Colorado’s Supreme Court found it legal for a company to fire a quadriplegic employee who had legally smoked marijuana off duty, every state – Maine included – has its own unique overlay of labor and marijuana laws. In Coates v. Dish Network, the Court decided against a customer service rep who was fired after testing positive for medical marijuana, which he had been prescribed following a serious car accident. His employer conceded that the employee wasn’t smoking on the job, but believed it could validly apply a zero-tolerance policy. 

What’s interesting about the outcome in Coates v. Dish Network is the fact that since 2007 Colorado has prohibited employers from terminating an employee based upon his or her “lawful activities” off premises and during non-working hours. Mr. Coates argued that his use of medical marijuana was “lawful” under Colorado’s Medical Marijuana Amendment and that he should not have been fired. On appeal, the question facing the court was whether ingesting marijuana – for any reason -- was “lawful,” given the fact that Colorado state law permitted it but not federal law. The Colorado Supreme Court decided that federal law took precedence, which meant that Dish Network was within its rights when it fired Mr. Coates.

Maine’s post-legalization statutory environment is likely to wind up being significantly different from that the environment existing in Colorado when the Coates ruling was issued. If and when a similar dispute gets adjudicated here, it might well result in a different outcome. In my opinion, the trap is in thinking that the Coates decision can be interpreted as a signal that employers in Maine will wind up being able to fire employees who smoke marijuana under the protection of our state laws. 

Another trap is for employers to think that in a year from now, the road will be clear in terms of how to navigate compliance issues resulting from legalization. Given the dynamic between federal and state regulation of marijuana, as well as the political environment in Augusta, even with the passage of a new statute following on from the Question 1 referendum, the uncertainty that exists for employers will continue. 

Because it frequently takes a series of test cases in court for a framework of predictability to develop, a year from now Maine employers are likely to have the same conversations about risk management and confusion about how best to comply.

Nevertheless, it would also be a trap for Maine businesses not to have some form of written policy in place now that prohibits employees from reporting to work while impaired or using a substance at work that adversely affects their ability to safely perform their job. 

Why bother? Well obviously, the prospect of employees regularly reporting to work under the influence of marijuana raises obvious concerns about absenteeism, productivity and workplace safety. And regardless of what legislation results from marijuana legalization, a year from now, two years from now, marijuana use will remain illegal under federal law. 

Maine’s marijuana law will never require an employer to allow an employee to work while impaired under the influence of marijuana and it will never require that an employer forego safety precautions that would otherwise be applied in the context of an employee’s use of other controlled substances, simply because the use of marijuana is now lawful outside of work. 

So, if you haven’t already done so, invest the time to develop a framework for a clear drug-free workplace policy. Even if you may be compelled to modify it a year or two down the road, from a risk management standpoint, it’s imperative to clarify your expectations to your workforce at least from the standpoint of how you intend to respond to impairment.

In terms of what Maine employers can be doing now, given the regulatory uncertainties, I recommend that each of you ought to be conducting an analysis to determine which positions in your businesses are safety-sensitive. This can be part of a process of reviewing and updating your written job descriptions or it can be a new initiative. In either case, the idea is to identify those functions in which substance abuse impairment during work could have a significant material impact on workplace safety.

In a post-legalization environment, the overall importance of having an applicant screening program in place – at least for cannabinoids – might well decrease for some employers, but the importance of having adequate reasonable suspicion testing and post-accident testing protocols in place covering cannabinoids is going to become much, much more important for all employers in Maine. Once you have the results of your identification of safety-sensitive positions in place, you’ll be in a better position to modify your drug-free workplace policy to address how you intend to specifically respond to situations in which an employee holding one of those positions is observed in an impaired state or after a workplace accident or near-miss.

The second thing that Maine employers can be doing now involves developing guidance that you’ll ultimately put in place for aiding your employees in determining whether one of their co-workers is impaired and for applying your reasonable suspicion testing procedure – once you’re authorized to have one. 

Post-legalization, Maine businesses will always be able to preclude employees from working while impaired. Particularly for employees holding safety-sensitive positions it’s going to be imperative that your entire workforce gain some clarity about how to develop a reasonable belief that a co-worker is impaired and how they should react if they develop such a belief.

Determining whether an employee is impaired is not easy. But there are definitely observational elements being used for determining whether a reasonable factual basis exists to believe that a person may be under the influence of alcohol or a chemical substance. We’ve begun to develop detailed guidance for clients in this area. Maine’s Department of Labor has also begun working on a training program that will be made available to Maine employers in 2017. 

Finally, as we wait to see where legalization leads, HR managers ought to begin having discussions with employees now about what their employer’s expectations will be as a result of legalization. Maintaining a position that marijuana remains illegal under federal law, and thus it is impermissible to use, possess, or be under the influence of while on the job, remains important to convey to your employees.