If your Maine employer or prospective employer has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Maine place restrictions on employers who want to require drug tests. Maine does not require or encourage drug testing. In fact, Maine has stricter rules for employers who wish to test than most states.
Drug Testing for Maine Applicants
Employers may require an applicant to take a drug test only if the applicant has been offered a job or a spot on an eligibility list from which applicants will be selected for employment.
Drug Testing for Maine Employees
Maine employers may require en employee to take a drug test only if:
- there is probable cause to believe that the employee is under the influence of drugs
- the employee is in rehabilitation or treatment, or is returning to work following a positive test result, or
- the employer has set up a random testing program that meets the state’s requirements.
Probable Cause Testing
An employer may require an employee to take a drug test if a supervisor, company security personnel, or a licensed physician or nurse, has reasonable grounds to believe that the employee is under the influence of drugs. This belief may not be based solely on:
- the statement of an anonymous informant
- a report of the employee’s off-duty possession or use of drugs, unless it occurred on or near the employer’s premises, during or right before working hours, or
- a single accident.
The person who decides that there is probable cause to test must put the facts on which that decision is based in writing and give a copy to the employee.
Testing After Rehabilitation or Positive Test
An employer may require an employee who returns to work after a positive drug test to take another drug test. This test must take place at least 90 days after the employee’s previous positive test, and not more than one year after the previous test. If an employer wants to test outside of this time frame, it must have another justification.
If an employee is undergoing rehabilitation or treatment for substance abuse, the employee may be required to submit to drug testing as required by the program. However, the employer may not require such testing itself, and the program may not share the results of such testing with the employer.
An employer may require random drug testing if such testing is agreed upon in a collective bargaining agreement or if the employer limits such testing to employees in positions for which drug use would create an unreasonable threat to public safety or the safety of other employees. Maine law states that this second basis for random testing is to be defined narrowly.
An employer may also establish a random testing program that applies to all employees, but only if all of the following requirements are met:
- The employer must have at least 50 employees who are not covered by a collective bargaining agreement.
- The testing policy must be developed by a committee that includes a medical professional and at least ten employees.
- The labor department must approve the policy.
- The employer may not discipline, terminate, or take other negative action against an employee for serving or refusing to serve on the committee that develops the testing policy.
- The employees must be selected for testing by a third party who is outside the employer’s influence, and the list from which employees are tested may not provide identifying information.
- Employees covered by a collective bargaining agreement may not be included, unless the agreement so provides.
Notice and Procedural Rights for Employees
An employer that conducts drug testing must adopt a written policy that has been approved by the state labor department. The employer must provide written copies of the policy to employees at least 30 days before it starts testing. Employees must receive notice 60 days’ in advance if the employer changes the policy.
Before starting a drug-testing program, an employer with more than 20 full-time employees must have an employee assistance program.
Legal Claims Arising From Drug Testing
Even though Maine law allows employers to drug test in some circumstances, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. A Maine employer that doesn’t follow all of the rules to institute random testing, for example, could find itself in legal trouble.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.