For Maine’s recreational marijuana users, getting high after work or on the weekend may no longer be a barrier to gaining employment at some of the state’s larger companies.

Many employers say they no longer test job applicants for marijuana use, or if they do, a positive result doesn’t preclude a qualified candidate from getting the job. 

Maine is among the states with legalized cannabis that do not have legal protections in place for recreational users, such as barring employers from testing them for THC, the active ingredient in marijuana. Meanwhile, the state’s recreational cannabis market has grown rapidly, more than doubling its monthly sales since the market first opened in October.

Bath Iron Works has “ambitious hiring goals,” spokesman David Hench said, with plans to bring more than 2,700 people on board just this year. Precluding what could be a significant segment of the applicant pool was “not prudent,” he said. 

The company, owned by defense contractor General Dynamics, does screen potential hires for a panel of substances including opiates, barbiturates, cannabinoids and cocaine. But following Maine’s vote to legalize recreational cannabis in 2016 and an expected adult-use market opening in 2018, which ultimately was delayed until fall 2020, “positive results on your cannabis testing will not be the basis for denial of a position at BIW,” according to the policy. 

Safety-sensitive positions including security officers, fire or medical personnel, crane operators, or those requiring a security clearance are exempt from that policy, however. Positions requiring Department of Transportation or U.S. Coast Guard certification also are subject to random and post-incident testing.

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

The change was made “in light of evolving state law,” spokesman John Porter said. 

Such policy changes are becoming more common among business clients, said Kristin Collins, an attorney with Portland law firm Preti Flaherty.

“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,” Collins said.

Following the October launch of Maine’s recreational marijuana market, it’s now easier than ever for someone above the age of 21 to partake of cannabis in their spare time, similar to the level of access for someone who might drink alcohol at the end of the day.

“The simple fact that someone uses marijuana does not mean they’re going to be an unsafe employee,” Collins said.

Given Maine’s typically tight job market, most employers in the state are averse to hiring policies that could scare away qualified, law-abiding applicants.

“It’s hard enough to find people to work in a lot of blue-collar jobs in the state, and what I’ve noticed is that not testing for marijuana gives you a larger applicant pool,” Collins said. “Whether testing for marijuana has a chilling effect on people (applying) or not, I’m not sure, but it would take a lot of otherwise qualified people out of an applicant pool or otherwise narrow one that was too narrow in the first place.”

‘A PERSONAL CHOICE’

Mary Allen Lindemann, co-founder of Portland’s Coffee By Design, said the company does not test applicants for drug use but noted that lenient hiring processes are even more important during the COVID-19 pandemic when so many people are looking for work.

“What someone does outside of work is a personal choice as long as it’s legal,” Lindemann said. “Whatever they do at home is not an issue, but they’re not permitted to be under the influence” while at work.

Some larger companies and organizations including Hannaford Supermarkets and the University of Maine System have similar policies, which, like Coffee By Design’s, have not changed since recreational cannabis was legalized. They don’t require applicants to be tested, but they still prohibit drugs and alcohol in the workplace.

Instead, many employers are now focusing on making sure employees are not high while on the job, something that isn’t always easy.

“There’s still not any definitive way to test whether someone is impaired from marijuana like they can test for alcohol,” Collins said. “(There is) no way to test on the spot.”

Different methods such as saliva testing may detect more recent marijuana use than testing urine or hair follicles, but the results are not conclusive.

Other ways to test whether a person is impaired, such as an app that tests the subject’s reaction time, decision-making ability and hand-eye coordination, are on the market or are in development, but Collins said such apps have not been sufficiently vetted to be used as evidence in court.

Still, the ability to test on the spot may give some employers comfort, she said, rather than including THC as part of a standard testing panel.

There are some situations in which employers have to test for marijuana use.

An employee holding a commercial driver’s license, for example, must be tested for drugs and alcohol per federal guidelines. Jobs requiring the use of a firearm or other weapons, as well as certain educational programs, also require such testing, Collins said. 

The issue is further convoluted by medical marijuana protections, which place an “extremely difficult overlay” on any policy, she said.

“There are a lot of people who use medical marijuana for medical conditions that very well may be disabilities,” she said. “(Employers are) not allowed to discriminate against anyone to medicate, but it doesn’t mean they can behave inappropriately. It has to be nuanced.”

Lindemann is familiar with keeping that balance.

She has had employees who have been prescribed medical marijuana to manage their health, and the company has had to make exceptions while making sure it will not impair job performance, especially for those working with equipment, she said.

TESTING STILL LEGAL

While the decision to drug-test is typically left up to the employer, the state of Maine currently requires that medical marijuana dispensaries administer a drug test to all applicants, though according to Maine Office of Marijuana Policy spokesman David Heidrich, that is likely to change.

Last month, the office released a list of proposed changes to the medical cannabis program rules that would eliminate the testing requirement, Heidrich said.

At Wellness Connection of Maine, the state’s largest cannabis provider, a positive cannabis test would not preclude a potential applicant from being hired, Managing Director Charlie Langston said. Use of an illegal drug, however, could be a disqualifier. 

Charlie Langston, managing director of Wellness Connection of Maine, poses for a portrait at the company’s recreational cannabis store High North in South Portland. Ben McCanna/Staff Photographer

Despite the company’s focus on selling cannabis, Wellness Connection does not allow consumption on the property, Langston said, and employees are not allowed to be impaired.

“People may be surprised, but we take a very serious approach to this,” he said. “This is a highly regulated industry and details matter.” 

That said, the company does not perform routine drug tests on existing employees but reserves the right to initiate a test if there is probable cause to believe that an employee’s substance use, of any kind, is hindering their ability to do the job. 

“You can’t just light up a joint or eat edibles while at work, but I’m sure there are people coming in who have medicated at home,” Langston said. “We do have quite a few employees who have medical cards, but they can’t be impaired at work.” 

Langston believes companies that disqualify a potential applicant based on legal marijuana use are likely missing out on good candidates. 

“With the incredibly diverse populations that are using, … these are people you’d be excited to have work for you,” he said. 

Amanda O’Leary, planning and research associate for the Maine Department of Labor’s Bureau of Labor Standards, helps businesses navigate the state’s drug testing laws as they draft policies.

“The bottom line is that employers can still test for marijuana, and the majority that have tested continue,” she said. “We are seeing in some industries – and they are widely varied – they are removing marijuana from their panels, (and) those that are still testing for it might be a little bit more lenient nowadays if they test positive.”

She recommends that employers look at their business and determine if drug testing is relevant to them.

Any company “that really wants to ensure they have a really good healthy workplace might want to consider they have a testing program,” she said, adding that employers should consult their own legal counsel when creating a policy.

Each employer with a drug testing policy approved by the Maine Department of Labor is required to report its testing activities annually.

POSITIVE TESTS INCREASE

According to a 2019 report on substance use testing by Maine employers conducted by the Maine Department of Labor, only 540 Maine businesses have state-approved substance use testing policies.

In 2019, 26,173 drug tests were performed with a 7 percent positivity rate, the highest percentage since the program was created in 1989. Cannabinoids accounted for roughly 92 percent of the positive tests.

The vast majority, 25,048, were applicant tests. Just 24 were conducted with “probable cause,” and 1,101 were done as part of a random or arbitrary practice.

The percentage of positive tests has been steadily increasing since marijuana legalization, with 4.8 percent in 2016, 5.7 percent in 2017 and 5.8 percent in 2018. It is unknown how October’s launch of the recreational cannabis market might affect data for 2020 and 2021, but O’Leary said she is confident marijuana will continue to account for the highest positivity rate of any drug.

Maine’s Medical Use of Marijuana Act prohibits schools, employers and landlords from discriminating against anyone 21 or older “solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding.”

When the laws governing recreational marijuana went into effect in 2018, a similar provision was put in place for users, prohibiting discrimination in hiring, housing or education solely for “that person’s consuming marijuana” outside of the school, housing or workplace. 

Then, that summer, the law was changed, and that section of the statute was removed. Now, employers may “enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment.”

Like Maine, Massachusetts and Colorado also don’t protect recreational cannabis users from employer-mandated drug tests, but last year, Nevada became the first state to ban employers from drug-testing applicants for THC. New York City followed suit later that year.

In both Nevada and New York City, there are restrictions in place for safety-sensitive positions or those in which federal law would require the employee to submit to drug screening tests.

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