Under the new recreational marijuana law, which is scheduled to go into effect in February, the majority of Maine businesses would not be able to test job applicants for marijuana use or fire an employee for a marijuana-positive drug test unless they could also prove use or impairment on the job, according to the state Department of Labor.

According to Julie Rabinowitz, the department’s director of policy, operations and communications, businesses can’t reject applicants for using marijuana because they might be using it for medical purposes, which is allowed under state law. And now, because cannabis can be used recreationally in Maine, most employers won’t be able to fire somebody for a positive drug test, but must instead prove they were impaired on the job.

Employers in other states that have legalized marijuana have more rights, Rabinowitz told the state legislative committee formed to create the regulatory framework for recreational marijuana. Some legalized states spell out the lack of employee workplace protections, like California or Massachusetts, while others, like Colorado, remain silent on the matter, Rabinowitz told the committee Monday.

“Our laws are an outlier,” Rabinowitz said. “If the Legislature does not take action to provide clear, consistent, easy to follow regulations, Maine risks more employers leaving the state. Let’s stop thinking of drug testing as something punitive. Rather, it incentivizes employees, especially those in recovery, to stay clean, and promotes a safer work environment for all workers.”

During the months leading up to the referendum, legalization backers said the law would leave employer protections in place and allow them to maintain drug-free workplace policies. On Monday, Rabinowitz painted a very different picture, and urged lawmakers to change the law to give employers more rights. The committee said that decision would be best handled by the Legislature’s labor committee.

In Maine, 4.8 percent of job applicants and employees failed their drug tests in 2016, which is higher than the national average of 4.2 percent but lower than the state’s 5 percent fail rate in 2015, Rabinowitz said. But the number of Maine businesses that test at all is low, because only companies with more than 50 employees can conduct random drug tests, she said, and they must offer employee assistance programs, which can be expensive.

Of the Maine workers who failed a drug test in 2016, about 91 percent tested positive for cannabinoids, the active ingredient in marijuana, Rabinowitz said.

Of Maine’s 46,000 employers, only about 800 have a state-approved drug testing program, Rabinowitz said. Federal employers and companies with federal contracts might test their employees under federal guidelines, but those employers do not have to report those results to their state labor departments. Of the employers that do report, paper manufacturing companies had the highest fail rates for all drugs at 11.9 percent.

Rabinowitz was one of a handful of speakers on Monday to talk to the committee about labor issues arising from the new adult-use marijuana law and the current medical marijuana program. Topics ranged from whether people laid off from jobs with high safety standards are breaking the law if they use marijuana while on unemployment to whether medical marijuana is covered by the workers compensation system.

As the committee learned, employers can reject applicants for jobs with high safety standards, such as forklift operators, if they test positive for cannabis. Rabinowitz said someone in that line of work shouldn’t be allowed to use cannabis while out on unemployment because it means they are unlikely to get hired for another job. That would qualify as a refusal to work, she said, which is unemployment fraud.

If the recipient was participating in the state medical marijuana program, however, they could continue to get their benefits and their medicine.

Lawmakers also learned that Maine is awaiting a State Supreme Judicial Court decision about whether a paper mill or its insurer can be forced to pay for marijuana prescribed to a worker who hurt his back on the job back in 1989. Paul Sighinolfi, director of the Maine Workers Compensation board, said other pain treatments, including opioids, failed, but medical marijuana worked.

Since 2012, when the injured employee switched over to medical marijuana, medical expenditures have dropped by 88 percent, Sighinolfi said.

“I can’t be an advocate for it, but the facts are pretty compelling,” Sighinolfi told the lawmakers.

Oral arguments on this case are likely to begin this fall, Sighinolfi said. The public policy and reasoning behind the state medical marijuana laws are more compelling than the one behind recreational use, he said. If the court deems medical marijuana laws unconstitutional, the recreational-use law wouldn’t withstand a legal challenge. Lawmakers told him they had to proceed as if it would withstand the challenge.

The state has delayed retail sales of recreational marijuana until it can set up rules and a licensing system. Since the referendum approval, the Legislature has made three changes to the law, including closing a loophole to prevent use among those under 21 years of age, changing state agencies that will oversee the industry and establishing testing standards for recreational marijuana.

Gov. Paul LePage signed two of the bills. The Legislature sent the marijuana testing bill to LePage last week.

The committee hopes to submit a bill that would establish licensing standards, tax rates and other start-up and enforcement regulations to the full Legislature next month. The Legislature would hold hearings on the bill, and have an opportunity to make changes to it, before the final vote during a special legislative session.

Correction: This story was updated at 12:40 p.m. on July 25, 2017 to clarify rules around firing employees and to correct the spelling of Paul H.¬†Sighinolfi’s last name.

Penelope Overton can be contacted at:

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