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Drug testing
Maine has a comprehensive statute which governs workplace drug testing. It applies to public and private employers of one or more employees. All substance abuse testing programs must be approved by the Maine Department of Labor, Bureau of Labor Standards.
The written program must be given to all employees before the program takes effect. Prior to conducting any type of drug testing, an employer with more than 20 employees must provide an employee assistance program (EAP) or participate in an EAP consortium.
Pre-employment testing is allowed after an offer of employment has been made.
A probable cause test is allowed under certain circumstances. Probable cause testing is defined as a reasonable belief in the existence of facts that induce a person to believe that an employee may be under the influence of a substance. It may not be based only on:
Random testing is allowed for safety-sensitive positions (a position which would create an unreasonable threat to the health or safety of the public or the employee’s coworkers if the employee were under the influence of a substance). It is also allowed under a collective bargaining agreement. An employer with 50 or more employees not covered by a collective bargaining agreement may establish a random testing program if specific guidelines are followed.
Employers may test as part of a rehabilitation program, as required by a treatment provider. Return-to-work testing can be conducted after a confirmed positive result, under the parameters specified by state law.
Qualified laboratories must be used for employee tests. An employer may perform screening tests on applicants if an employer’s testing facilities comply with the requirements for testing laboratories.
An employer may suspend an employee with full pay and benefits or may transfer the employee to another position with no reduction in pay or benefits while awaiting an employee’s test results.
An employee who receives an initial confirmed positive result must be offered an opportunity to participate in a rehabilitation program for up to six months. State law addresses how rehabilitation payment is divided between the employee and employer. It also addresses changes to the employee’s work assignment and job reinstatement.
Unless an employee or applicant consents, all information acquired by an employer in the testing process is confidential. (Information may be released when required or permitted by state or federal law.)
The state allows an employer with any employees who are subject to a federally mandated drug and alcohol testing program to expand the federal testing pool to cover all employees and forego a policy with the state. However, employers still need to restrict random alcohol testing to comply with the federal Americans with Disabilities Act (ADA).
Workers’ compensation
Maine’s workers’ compensation law allows for denial of benefits to an employee whose injury or death was the result of intoxication while on duty, unless the employer knew at the time of the injury that the employee was intoxicated or was in the habit of becoming intoxicated while on duty.
Contacts
Maine Office of Substance Abuse
Regulations
Drug testing
Maine Revised Statutes Title 26, Chapter 7, §§681- 690
Dept. of Labor Rules 12-170-Chapter 7
Workers’ compensation
Maine Revised Statute Title 39-A, Chapter 5, §202
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document