I’m a business lawyer, and I only represent employers in employment related matters. So when I took a look at the Maine Marijuana Legalization Act, as drafted by its proponents and approved by Maine voters in November, I was concerned. At first glance, the law’s ban on employers discriminating against employees solely because they use marijuana outside of the workplace, may seem like a harmless provision to many. But the law – on hold for now – omits important protections for employers whose tolerance of marijuana use may jeopardize their federal contracts, federal funds, or may otherwise cause the employer to violate federal law. The legislature needs to fix this before the moratorium that delayed enactment of most of this law until February 1, 2018, wears off.

Maine’s existing medical marijuana law has such a protection built into its nondiscrimination section:

School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 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. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or a business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

22 M.R.S. §2423-E (2).

This section provides an important protection for Maine employers in the medical marijuana context. While it generally prevents them from discriminating against medical marijuana patients and caregivers, it gives them an out if the employer’s failure to prevent employees from using or serving as a marijuana caregiver, would jeopardize the employer’s eligibility for federal funds, would jeopardize a federal contract, or would cause the employer to violate federal law. This is very helpful in situation such as employers who have workers subject to Federal DOT testing, i.e. commercial drivers.

Section 2454 of the recreational statute, which will be at 7 M.R.S. chapter 417, lacks this  safety valve. Once the moratorium is over, the recreational statute will state:

School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

7 M.R.S. §2454 (3).

In my view, this is a significant oversight by the drafters of the ballot initiative, and one that that the Legislature failed to correct when it passed the moratorium in January. Here’s hoping they take a sharper look at this before next year.