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.
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.
Maine employers may require en employee to take a drug test only if:
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 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.
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:
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.
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: