Drug testing - Maine

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.

A workplace drug and alcohol testing policy must include information about substances to be tested for, who will be tested, and the action to be taken for refusal to submit to a test. It must address testing procedures, identification of sample collection facilities, and actions that will be taken to ensure that the sample has not been substituted, adulterated, diluted, or otherwise tampered with. Storage, chain of custody, and procedures for notification of the result must also be included.

The written program must be given to all employees before the program takes effect. A copy of the policy must also be given to applicants before a substance abuse test is administered.

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 or reasonable suspicion test is allowed when there is 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:

• Information from an anonymous informant,
• Information tending to indicate that an employee may have possessed or used a substance off duty, except when the employee is observed possessing or ingesting any substance either while on an employer’s premises or near the premises during or immediately before work, or
• A single work-related accident.

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. The random selection must be performed by a person or entity not subject to influence by the employer.

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. Observed tests are not allowed. An employer may perform screening tests on applicants if an employer’s testing facilities comply with the requirements for testing laboratories. A sample with a negative result must be destroyed. A sample with a positive result must be sent to a qualified screening laboratory for confirmation.

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.

Under Maine Revised Statutes Chapter 7 Section 685, 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. If the employer has an employee assistance program that offers counseling or rehabilitation services, the employee may choose to enter that program at the employer's expense. If these services are not available from an employer's employee assistance program or if the employee chooses not to participate in that program, the employee may enter a public or private rehabilitation program. If the employee uses a public or private rehabilitation program and the employer has more than 20 full-time employees, the costs are equally divided between the employer and employee, except to the extent that costs are covered by a group health insurance plan.

State law also addresses changes to the employee’s work assignment and job reinstatement. An employer may change the employee's work assignment or suspend the employee from active duty to reduce any possible safety hazard. The employer is not required to pay the employee for periods in which the employee is unavailable for work due to rehab or medical disqualification. An employee may use sick leave and vacation time. Upon successful completion of the rehabilitation program, the employee is entitled to return to the previous job with full pay and benefits unless conditions unrelated to the employee’s positive drug test make returning impossible. Union agreements must also be taken into consideration.

Employers must pay the costs of all substance use tests the employer requires, requests, or suggests. The employee or applicant pays the costs of any additional tests if the test result is positive.

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.