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 unless an employer has employees who are subject to a federally mandated testing program. All companies conducting substance use testing, including those with a collective bargaining agreement, must have a testing policy approved by the state’s Department of Labor. Once a drug test has been initiated, an employer must fully follow the procedures outlined in the company’s substance use testing policy.

An employer may also establish rules relating to substance possession or use in the workplace, and those rules are not covered by the state's drug testing law. Any actions relating to drug or alcohol testing must comply with the state's Substance Use Testing law, however.

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, cutoff levels, sample storage, chain of custody, and procedures for notification of the result. The consequences of a confirmed positive test and procedures for appealing the accuracy of the result must also be part of the policy.

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. Reasonable suspicion, random, criteria-based, and return-to-work testing are allowed during employment.

Reasonable suspicion means specific and articulable facts that, taken together with rational inferences from those facts, reasonably support the belief that an employee may be under the influence of a substance. An employer may require an employee to submit to a test if the employer has reasonable suspicion to believe that, based on observable behaviors, the employee may be impaired. The employee’s immediate supervisor, other supervisory personnel, a licensed physician or nurse, or the employer’s security personnel must make the determination of reasonable suspicion and state, in writing, the facts upon which the determination is based. A copy of the statement must be provided to the employee before the test is conducted. Reasonable suspicion 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 without the employee also exhibiting observable behavior indicating impairment at the time of the accident.

Observable behavior means physical, behavioral, or psychological signs that can be seen, heard, smelled or otherwise observed that provide a reasonable suspicion that an employee is impaired by substance use including signs regarding appearance, behavior, speech, or odor that are usually associated with substance use.

Random testing is a neutral selection method by which all employees have an equal chance of being selected for substance use testing. The random selection must be performed by a person or entity not subject to influence by the employer. Criteria-based testing includes testing based on set events unrelated to substance use, including an employment anniversary or promotion. It also includes client-required and site-specific testing based on criteria unrelated to substance use, such as testing required prior to work on a project or work at a specific site.

An employer may conduct random or criteria-based testing of an employee if the employee works in a safety-sensitive position (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). Random and criteria-based testing are also allowed under a collective bargaining agreement and an employer with 50 or more employees not covered by a collective bargaining agreement may establish a random or criteria-based testing program that applies to all employees. A random or criteria-based testing program is also allowed if an employer is required to test employees to retain a contract.

Employers may test as part of a rehabilitation program, as required by a treatment provider. An unannounced return-to-work test can be conducted after a confirmed positive result, under the parameters specified by state law.

A screening test of urine or saliva may be performed at the point of collection rather than in a laboratory. The testing device must be cleared by the federal Food and Drug Administration. A sample with a negative result must be destroyed. A sample that results in a non-negative test result must be sent to a qualified testing laboratory for confirmation testing. Outside of point of collection tests, an employer may only administer or perform a substance use test if the employer’s testing facilities comply with the requirements for a qualified testing laboratory. Observed tests are not allowed.

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.

Within three days after notice of a confirmed positive test result, an employee or applicant may submit information to the employer explaining or contesting the results. An applicant or employee must be given the opportunity contest a non-negative test result by discussing any legitimate medical explanation for the result with the medical review officer or confirmation testing laboratory representative. A medical review officer is a person who is a licensed physician and who is responsible for reviewing and receiving laboratory results generated by an employer’s substance use testing program and evaluating medical explanations for certain substance use test results.

If there is a legitimate medical explanation, the result must be reported to the employer as a confirmed positive result with a legitimate medical explanation. If there is no legitimate medical explanation, the result is reported as confirmed positive result. Only a medical review officer may report a confirmed positive to an employer. The medical review officer must contact the employee or applicant and, if necessary, the employee’s or applicant’s physician to review each confirmed positive result or any test found to be adulterated, substituted, or otherwise invalid to determine whether there a legitimate medical explanation for the result. The medical review officer must protect the confidentiality of substance use testing information.

A legitimate medical explanation for a confirmed positive result includes legal cannabis used under the Maine Medical Use of Cannabis Act and use of a controlled substance with a valid prescription that is used at a level consistent with prescribed amounts.

An employee who receives an initial confirmed positive result must be offered an opportunity to participate in a rehabilitation program of 12 weeks. The cost is the responsibility of the employee.

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 agency.)

The state allows an employer with at least one employee in the state who is subject to a federally mandated drug and alcohol testing program (such as testing required by the Department of Transportation for covered employees) to expand the federal testing program 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).

An employer must notify the Maine Department of Labor in writing if the employer intends to discontinue a substance use testing program. The employer that has discontinued an approved testing policy shall notify the department in writing if the employer chooses to reinstate a prior approved substance use testing policy.

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.