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MDOL’s drug testing report shows interesting results on marijuana use

The Maine Department of Labor (MDOL) recently issued a report on the results of employers’ drug testing programs in Maine during 2015.  Under Maine law, unless federal law requires an employer to drug test, employers who want to test applicants or employees for drugs must submit their drug testing plan to MDOL for approval.  Every year, MDOL issues a report on the results of those drug testing plans it has approved.

In 2015, the percentage of positive results reached a record high of 5%.  The vast majority of those positive results stemmed from positive tests for cannabinoids, which include marijuana.  The results varied across industries and also based on whether the tests were conducted on applicants as opposed to current employees.  For instance, in the retail industry 6.2% of drug tests were positive while in the construction industry 3.8% of drug tests were positive.  A higher percentage of drug tests administered to employees were positive as compared to applicants because employers less commonly test current employees and many times only test current employees when they have reason to believe that the employee is using drugs.

The fact that cannabinoids were, by far, the drug most commonly found in the drug tests is interesting given Maine’s medical marijuana laws.  In Maine, it is legal in some instances for people to use marijuana for medicinal purposes.  The MDOL report does not indicate how many of these positive cannabinoid test results came from people who were using marijuana legally under Maine law.

Maine’s medical marijuana law prohibits employers from discriminating against workers who, under Maine law, legally use medicinal marijuana outside of work.  However, federal law still prohibits all marijuana use.  Maine’s Supreme Judicial Court has not yet decided whether federal marijuana law would preempt Maine’s medical marijuana law but there has been some litigation over this issue, including a highly publicized case filed by the Maine ACLU which settled in January 2014.  The Oregon Supreme Court has held that federal law preempts Oregon’s medical marijuana law but courts in California and Arizona have ruled the opposite way.  Of course, the rulings from courts in Oregon, Arizona, and California are not binding in Maine.  Thus, it is still unclear whether Maine employers may refuse to hire an applicant or discipline an employee who tests positive for marijuana if the applicant or employee legally uses marijuana under Maine law.