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Existing law for federally covered employees

Until recently, individuals “subject to substance abuse testing under any federal law” were some of the few employees who could be drug tested in Maine without an MDOL-approved policy. Even those employees, however, were still protected by the rehabilitation requirements of Maine law if they tested positive for controlled substances and could not be terminated on the basis of a single positive test.

New legislation and what it means

New legislation could change the face of Maine’s drug-testing landscape. Legislative Document 1241, as originally proposed, would have lessened certain restrictions on when nonfederally covered employees could be drug tested, including after an accident or for probable cause. An amendment, however, changed the legislation to provide that “any employer subject to a federally mandated drug and alcohol testing program . . . and its employees” are exempt from Maine’s drug testing laws in their entirety. The bill, as amended, was signed into law by the governor on June 2,  2011, and took effect September 28, 2011.

Any Maine employer with federally covered employees is no longer required to follow Maine’s drug-testing statutes for any of its employees (federally covered or otherwise). Instead, it can test all of its employees under the federal standards. The amendment’s bill summary supports that interpretation and explains that the language was designed to allow an employer covered by federal requirements “to extend its [federal drug-testing] program to its entire workforce . . . [and] have the same substance abuse policy for all employees.”

The good news

Employers that have some employees subject to federal drug-testing requirements (e.g., commercial drivers) no longer have to have an MDOL-approved policy for the rest of their workforce (e.g., secretaries, janitors, office workers, and the like). Now you can test all employees and applicants under your federal policy. If you elect to take that route, you should review your federal drug testing policy, amend it to include all employees, and be sure to communicate to all workers the changes and the end of your old drug-testing policy. It’s important to remember that to avoid the MDOL drug-testing requirements you must have at least some employees on your payroll who require federal drug testing.

  Want to hear more about this subject come see David and Peter live at the 2012 Maine HR Convention on Thursday 5/10/2012 at 10:15am or contact David Ciullo at dciullo@cmacareer.com or Peter Lowe at plowe@brannlaw.com. David Ciullo is the President of Career Management Associates which is an HR Services firm specializing in HR Services, Search, Outplacement, Staffing, Coaching, and Training. Peter D. Lowe is a partner at Brann & Isaacson who provides advice and counsel to clients on labor and employment law.

 

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