Some Thoughts for Maine Employers on Marijuana Legalization

[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.

Maine DOL Proposes Rulemaking to Incorporate New Federal Overtime Rule

Earlier this month, the Maine Department of Labor announced proposed changes to its regulations that would align them to be consistent with changes being made to federal overtime regulations. The new federal overtime rule, which goes into effect on December 1, 2016, updates the salary threshold needed to qualify for the so-called “white collar” exemption under the federal Fair Labor Standards Act. That exemption applies to employees employed in a bona fide executive, administrative, or professional capacity.

In its notice of rulemaking, Maine DOL proposes to incorporate the changes in the federal overtime rule into its own rules so as to make them consistent with each other. The Maine DOL notes that these changes would include increasing the salary threshold to $913.00 a week for qualifying executive, administrative and professional exempt employees. The current salary threshold is $455 a week.

A public hearing on the proposed changes is scheduled for November 3, 2016, and the public may submit comments until noon on November 14, 2016. 

As noted in Maine DOL’s announcement, the new federal overtime rule will apply to employers throughout Maine beginning on December 1. Consequently, employers should not take Maine DOL’s recent rulemaking notice as a reason to delay implementing changes that may be required as a result of the new federal overtime rule.

Legislative Update on Maine’s Substance Abuse Testing Law

In legislative news, a bill that would have implemented new changes to Maine’s substance abuse testing law has died after the House and Senate failed to agree on amendments to the bill from the Committee on Labor, Commerce, Research and Economic Development.

As originally drafted, LD 1384 proposed a number of changes to the current law, including a revision to the probable cause standard that would have permitted an employer to find probable cause based on a single work-related accident that results in personal injury or significant damage to property. The current law prohibits a single work-related accident from forming the basis of probable cause to believe an employee may be under the influence of a substance of abuse.

In February, the Maine Department of Labor issued a lengthy report recommending other changes to the current statute, including the development of a uniform drug testing policy to be used by employers in the state.  The report followed a workgroup convened by the Department to study issues related to the impairment of workers due to the use of medical marijuana, opiates, prescription drugs, and other legal and illegal substances.

The Department’s report included a draft amendment to LD 1384 that was presented to the LCRED committee.  However, the amendment did not receive unanimous approval from the committee, which issued a divided report largely along party lines, and the House and Senate subsequently voted to pass competing amendments to the bill, resulting in the bill dying between houses.  This means that the Department’s recommended changes to the current law will remain just that—recommendations—for now.