maine health employee fired for cbd oil use

Maine employers no longer require marijuana tests

PORTLAND, Maine — Some of Maine’s largest employers no longer test job applicants to see if they have used marijuana or if they do, a positive test no longer precludes a qualified candidate from getting a job.

The Portland Press Herald reported it is becoming more common for employers in a state with a tight job market and legal recreational marijuana to change their policies about drug testing.

Rather than marijuana use, many Maine employers are now focusing on making sure employees are not high while on the job, something experts say isn’t always easy.

“The trend has been to take it out of their testing policies because [marijuana] use is so widespread and the testing doesn’t even come close to pinpointing whether the person is using on the job or not,” said Kristin Collins, an attorney with Portland law firm Preti Flaherty.

Maine is among the states with legalized cannabis that do not have legal protections in place for recreational users. But the state’s recreational cannabis market has more than doubled its monthly sales since the market first opened in October.

Bath Iron Works has “ambitious hiring goals,” planning to bring on board 2,700 people this year, said spokesman David Hench.

He said precluding what could be a significant segment of the applicant pool was “not prudent.”

The company does screen potential hires for a panel of substances including opiates, barbiturates, cannabinoids and cocaine, but the company’s policy says a positive cannabis test “will not be the basis for denial of a position at BIW.”

And safety-sensitive positions including security officers, fire or medical personnel, crane operators, or those requiring a security clearance, are exempt from that policy as are positions requiring Department of Transportation or U.S. Coast Guard certification.

Beyond BIW, employees holding a commercial driver’s license, must be tested for drugs and alcohol per federal guidelines. Jobs that require the use of a firearm or other weapons, as well as certain educational programs, also require marijuana testing, Collins said.

The state’s largest private employer, MaineHealth, with about 22,000 employees, conducts pre-employment drug screening, but as of November 2019, the panel no longer includes a test for THC.

Spokesperson John Porter said the change was made “in light of evolving state law.”

State and City Laws Protecting Marijuana Users’ Employment Rights

Laws in twenty-one states: Arizona, Arkansas, Connecticut*, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana*, Nevada*, New Jersey*, New Mexico, New York*, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia and West Virginia prohibit employers from discriminating against workers on the basis of their use of medical marijuana. Washington, DC and Puerto Rico also protect the employment rights of medical marijuana patients. In addition, the Supreme Court of New Hampshire has ruled that the state’s disability and accommodation law can cover medical marijuana patients on a case-by-case basis.

The cities of Atlanta, Philadelphia, Washington DC, Baltimore MD, Rochester NY, Richmond VA, Isle, MN and Kansas City, MO have enacted laws protecting employment rights of recreational marijuana users, as have *the states of Montana, Nevada, New York, New Jersey and Connecticut. (Maine’s 2016 voter approved initiative protected recreational marijuana users on the job, unless it can be proved that there is a safety concern. However, the legislature repealed the provision and instead assigned the topic to a commission.)

San Francisco has had a law on the books since 1985 protecting employees against job discrimination due to drug testing for marijuana.

States generally exempt employers who are required to follow federal drug-testing mandates, and may have other exemptions.

The medical laws in Arizona, Arkansas, Delaware, Minnesota, Oklahoma, Rhode Island and South Dakota as well as Connecticut’s recreational law specify that a positive drug test alone does not necessarily indicate impairment. New Jersey and Minnesota’s laws allow an employee or job applicant to present a medical explanation for a positive test result.

MEDICAL LAWS

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person’s status as a cardholder.

2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient or Designated Caregiver.

No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:

a. The person’s status as a cardholder; or

b. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

No school, employer, or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.

No school, landlord, or employer may be penalized or denied any benefit under State law for enrolling, leasing to, or employing a cardholder.

School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

Employment policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.

MD Code, Health – General, § 13-3313
§ 13-3313. Persons acting in accordance with subtitle not subject to arrest, prosecution, or civil or administrative penalties

In general
(a) Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, revocation of mandatory supervision, parole, or probation, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of or possession of medical cannabis:
(1) A qualifying patient

§ 13-3314. Activities subject to civil, criminal, or other penalties
Activities prohibited
(a) This subtitle may not be construed to authorize any individual to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for, the following:
(1) Undertaking any task under the influence of marijuana or cannabis, when doing so would constitute negligence or professional malpractice.

Employers Permitted to Test for Marijuana – Maryland Health-General § 17-214 (Controlled Substance Testing by Employer).

Mass. Gen. Laws Ann. Ch. 94I §§ 1 to 8; 105 Mass. Code Regs. 725.650; Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017); Mass. Gen. Laws Ann. ch. 94G, § 2

Medical marijuana: Employers are not required to accommodate on-site use of medical marijuana at the workplace. However, an employee who uses medical marijuana to treat a disability is entitled to reasonable accommodation under the state disability discrimination law. Under that law, employers with 6 or more employees must accommodate off-site, off-duty use, unless there is an equally effective alternative treatment available or it would cause the employer undue hardship.

Recreational marijuana: Employers are not required to accommodate recreational marijuana use in the workplace. Employers may enforce workplace policies restricting marijuana consumption by employees.

MCA § 39-2-313. Discrimination prohibited for use of lawful product during nonworking hours — exceptions.
(1) For purposes of this section, “lawful product” means a product that is legally consumed, used, or enjoyed and includes food, beverages, and tobacco.
(2) Except as provided in subsections (3) and (4), an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer’s premises during nonworking hours.
(3) Subsection (2) does not apply to:
(a) use of a lawful product, including the use of marijuana for a debilitating medical condition as defined in 50-46-302, that:
(i) affects in any manner an individual’s ability to perform job-related employment responsibilities or the safety of other employees; or
(ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual’s employment;
(b) an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or
(c) an employer that is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.
(4) An employer does not violate this section if the employer takes action based on the belief that the employer’s actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.
(5) An employer may offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions between employees for the type or price of coverage based on the employees’ use of a product if:
(a) differential rates assessed against employees reflect actuarially justified differences in providing employee benefits;
(b) the employer provides an employee with written notice delineating the differential rates used by the employer’s insurance carriers; and
(c) the distinctions in the type or price of coverage are not used to expand, limit, or curtail the rights or liabilities of a party in a civil cause of action.

Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

An employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6.

NRS 453A.800 The provisions of this chapter do not:

Require any employer to allow the medical use of marijuana in the workplace.

Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.

Prohibit a law enforcement agency from adopting policies and procedures that preclude an employee from engaging in the medical use of marijuana.

As used in this section, “law enforcement agency” means:
(a) The Office of the Attorney General, the office of a district attorney within this State or the Nevada Gaming Control Board and any attorney, investigator, special investigator or employee who is acting in his or her professional or occupational capacity for such an office or the Nevada Gaming Control Board; or
(b) Any other law enforcement agency within this State and any peace officer or employee who is acting in his or her professional or occupational capacity for such an agency.

It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registry identification cardholder. “Adverse employment action” means refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.

If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.

Within three working days after receiving notice pursuant to paragraph (1) of this subsection, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense. As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, a registry identification card, or both.

Nothing in this section shall be deemed to:

(1) restrict an employer’s ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours; or

(2) require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.

No employer shall be penalized or denied any benefit under State law solely on the basis of employing a person who is a registry identification cardholder.

Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under the Lynn and Erin Compassionate Use Act.

Nothing in this section shall: (1) restrict an employer’s ability to prohibit or take adverse employment action against an employee for use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment; or (2) apply to an employee whose employer deems that the employee works in a safety-sensitive position.

Being a certified patient shall be deemed to behaving a “disability” under article fifteen of the executive law (human rights law), section forty-c of the civil rights law, sections 240.00, 485.00, and 485.05 of the penal law, and section 200.50 of the criminal procedure law. This subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. This subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.

Unless otherwise required by federal law or required to obtain federal funding:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.

Employees and job applicants have no cause of action against an employer who discharges them for violation of their drug policy. (18 V.S.A. § 4230a(e)):

(e) Nothing in this section shall be construed to do any of the following:

(1) require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;

(2) prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;

(3) create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or

(4) prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on the employer’s premises. (Added 2013, No. 76, § 2; amended 2013, No. 95 (Adj. Sess.), § 81, eff. Feb. 25, 2014; 2013, No. 194 (Adj. Sess.), § 13; 2017, No. 86 (Adj. Sess.), § 4.)

However, employer must engage in interactive process and, where appropriate, accommodate medical marijuana users under state disability discrimination laws – 21 V.S.A. § 495; Guide to Vermont’s Laws on Marijuana in the Workplace, Vermont Office of the Attorney General, Civil Rights Unit (June 2018).

Under Vermont’s Fair Employment Practices Act (VFEPA), employees’ current illegal drug use does not disqualify the employee from protection under Vermont’s disability laws unless that use (i) prevents them from performing the duties of their job, or (ii) constitutes a “direct threat to the property and safety of others.” In other words, Vermont law protects workers who can safely do their job, even if they are currently struggling to overcome addiction.

While Vermont’s medical marijuana laws do not require employers to tolerate the consumption or possession of marijuana in the workplace, the laws do not permit employers to discriminate against disabled applicants or employees who use medical marijuana outside of work to treat their disability. Remember that Vermont issues medical marijuana cards only to persons certified as having a “debilitating medical condition.” In many instances, such conditions count as legally-protected disabilities under VFEPA.

South Dakota Codified Laws 34-20G-22 et seq.

Section 22. That the code be amended by adding a NEW SECTION to read:
Except as provided in this Act, a registered qualifying patient who uses cannabis for a medical purpose shall be afforded all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication, as it pertains to:

(1) Any interaction with a person’s employer
(2) Drug testing by a person’s employer; or
(3) Drug testing required by any state or local law, agency, or government official.

Section 23. That the code be amended by adding a NEW SECTION to read:
The rights provided by sections 19 to 25, inclusive of this Act do not apply to the extent that they conflict with an employer’s obligations under federal law or regulation or to the extent that they would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation.

Section 24. That the code be amended by adding a NEW SECTION to read:
No employer is required to allow the ingestion of cannabis in any workplace or to allow any employee to work while under the influence of cannabis. A registered qualifying patient may not be considered to be under the influence of cannabis solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.

Section 25. That the code be amended by adding a NEW SECTION to read:
No school, landlord, or employer may be penalized or denied any benefit under state law for enrolling, leasing to, or employing a cardholder.

§ 40.1-27.4. Discipline for employee’s medicinal use of cannabis oil prohibited.

A. As used in this section, “cannabis oil” means the same as that term is defined in § 54.1-3408.3.

B. No employer shall discharge, discipline, or discriminate against an employee for such employee’s lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to § 54.1-3408.3.

C. Notwithstanding the provisions of subsection B, nothing in this section shall (i) restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours, (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding, or (iii) require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.

§16A-15-4. Protections for patients and caregivers.

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical cannabis on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.

§16A-5-10. Prohibitions.

The following prohibitions shall apply:

(1) A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than three nanograms of active tetrahydrocannabis per milliliter of blood in serum:

(A) Chemicals which require a permit issued by the Federal Government or a state government or an agency of the Federal Government or a state government.

(B) High-voltage electricity or any other public utility.

(C) Vehicle, aircraft, train, boat or heavy machinery.

(2) A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical cannabis.

(3) A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

(4) A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.