Drug testing by employers in Maine is governed by these state rules.
Employers are not required to conduct substance abuse testing of employees or applicants, but may choose to do so in accordance with Maine's drug testing law. Supplemental policies may be established, provided such policies are not inconsistent with Maine's drug testing law.
Maine's drug testing law does not prevent an employer from establishing rules related to the possession or use of substances of abuse by employees, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules, except when a substance abuse test is required, requested or suggested by the employer or used as the basis for any disciplinary action.
Drug Testing Requirements
An employer may require, request or suggest that an applicant submit to a substance abuse test if:
- the applicant has been offered employment with the employer; or
- the applicant has been offered a position on a roster of eligibility from which applicants will be selected for employment (the number of persons on this roster of eligibility may not exceed the number of applicants hired by that employer in the preceding six months).
The offer of employment or offer of a position on a roster of eligibility may be conditioned on the applicant receiving a negative test result.
An employer may require, request or suggest that an employee submit to a substance abuse test if the employer has probable cause to test the employee. Only the employee's immediate supervisor, other supervisory personnel, a licensed physician or nurse, or the employer's security personnel have the authority to make a determination of probable cause. The supervisor or other person must state, in writing, the facts upon which this determination is based and provide a copy of the statement to the employee.
In addition to testing employees on a probable cause basis, an employer may require, request or suggest that an employee submit to a substance abuse test on a random or arbitrary basis if at least one of the following conditions is met:
- the employer and the employee have bargained for provisions in a collective bargaining agreement that provide for random or arbitrary testing of employees; or
- the employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee's co-workers if the employee were under the influence of a substance of abuse.
While the employee is participating in a substance abuse rehabilitation program either as a result of voluntary contact with or mandatory referral to the employer's employee assistance program or after a confirmed positive test result, substance abuse testing may be conducted by the rehabilitation or treatment provider as required, requested or suggested by that provider. Substance abuse testing conducted as part of such a rehabilitation or treatment program is not subject to Maine's drug testing law provisions, however, and the results of any substance abuse test administered to an employee as part of such a rehabilitation or treatment program may not be released to the employer.
If an employee who has received a confirmed positive result returns to work with the same employer, whether or not the employee has participated in a rehabilitation program, the employer may require, request or suggest that the employee submit to a subsequent substance abuse test anytime between 90 days and one year after the date of the employee's prior test.
Before establishing any substance abuse testing program for employees, an employer with over 20 full-time employees must have a functioning employee assistance program. Employers may meet this requirement by participating in a cooperative employee assistance program that serves the employees of more than one employer. Employee assistance programs must be certified by the Office of Substance Abuse.
Employers must provide employees with a copy of their written drug testing policy at least 30 days before any portion of the written policy applicable to employees takes effect. The employer must provide each employee with a copy of any change in a written policy at least 60 days before any portion of the change applicable to employees takes effect. The Department of Labor may waive the 60-day notice for the implementation of an amendment covering employees if the amendment was necessary to comply with law or if, in the judgment of the department, the amendment promotes the purpose of the law and does not lessen the protection of an individual employee.
If an employer intends to test an applicant, the employer must provide the applicant with a copy of the written policy before administering a substance abuse test to the applicant. The 30-day and 60-day notice periods provided for employees under Maine's drug testing law do not apply to applicants.
A person who performs a point of collection screening test or confirmation test may release the results of the test only under certain conditions.
Employers using substance abuse testing may use tests that have been recognized by the federal Food and Drug Administration (FDA) as accurate and reliable through a clearance or approval process. If the Department of Health and Human Services does not have cutoff levels or procedures for a particular test, the FDA's cleared or approved cutoff levels should be used.