Medical Marijuana Law’s Effect on Employers’ Drug Policies Still Hazy

In light of the protections Maine’s Medical Use of Marijuana Act (MMUMA) affords to qualifying patients, many employers are left wondering how the law impacts them.  And while medical marijuana use is legal in Maine, possession and use of the drug still violates federal law.  In this complex legal environment, employers must use caution in making employment decisions based on their employees’ medical marijuana use.
Maine’s medical marijuana law provides, among other protections, that patients whose conduct is authorized by MMUMA may not be subjected to “disciplinary action by a business or occupational or professional licensing board or bureau.”
However, MMUMA does not require employers to accommodate marijuana use in the workplace, or allow any employee to work while under the influence of the drug.  It also prohibits employees from being under the influence at work if doing so would be negligent or violate professional standards.
While these provisions are a nod to common sense, less obvious is the way MMUMA interacts with drug-testing laws and policies.  An employer with a federal- or state-approved drug-testing policy must be careful in making employment decisions based on drug tests.  For instance, a CDL driver who tests positive for using legal medical marijuana outside of work may, under DOT regulations, be removed from duty.  While that employee must then be referred to a Substance Abuse Professional, terminating that employee may or may not violate MMUMA’s protection of patients against disciplinary action (more on that below).
While MMUMA does appear to protect employees from discipline due to medical marijuana use outside of work, it is unclear just how far the protection extends.  Courts in other states, such as the 6th Circuit Court of Appeals, have recently found that employers have the right to discharge employees for testing positive for medical marijuana use outside of work.  The 6th Circuit reasoned that Michigan’s act only prevents state occupational and professional boards – and not private employers – from disciplining employees for medical marijuana use.
You may be wondering, why does Michigan’s law matter to Maine employers?   Because the language the 6th Circuit interpreted in the Michigan Act is identical to the relevant language in MMUMA.   The very same language in MMUMA which appears to prevent private Maine employers from disciplining employees for medical marijuana use outside of work has been interpreted by at least one federal court to extend no such protection.
Because no Maine case has yet addressed this issue, and because there are so many variables at play, a wise employer will tread carefully when making employment decisions based on medical marijuana use.  As always, feel free to contact the attorneys at Tucker Law Group if you have any questions on this issue.
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