With recreational or “adult use” cannabis now legal in Maine, what impact will that have on your business? How will it impact your hiring process, your health insurance, and your government contracts? To find out, we chatted with Kristin Collins at PretiFlaherty, who has been helping Maine businesses navigate these tricky waters.
Rich: Our guest today is an attorney with Preti Flaherty in the Municipal Law and Finance Group. She works with municipalities, landowners, developers, and citizen groups on all areas of municipal law, including employment and labor law. Her clients value the relationship she has built over her long municipal practice and her pragmatic approach to solving problems.
She’s a trusted ally to the municipal officials she serves and has the respect of those before whom she appears. She’s a frequent, well-regarded presenter around the state teaching seminars and workshops on municipal legal matters. She has practiced before many Maine state courts and administrative agencies, and successfully argued several appeals before Maine’s law court.
She obtained her undergraduate degree in International Relationships from Colgate University in Hamilton, New York, and earned her law degree from the University of Maine School of Law.
Today she’s with us to discuss what Maine owners need to know about the changing cannabis laws and how they impact our companies, our hiring practices, and our employees. Welcome to the podcast. Kristen Collins. Thanks so much for being here.
Kristin: Thanks so much for having me, Rich.
Yury: Kristin, we’re excited and I want to jump right in with the very first question. It’s going to be a very tricky, so I hope you’re prepared. As a lawyer, how did you decide, or how did you find yourself, operating in this fast-changing industry of cannabis regulations? Why this domain, and why now?
Kristin: Well, you can’t avoid cannabis in Maine over the last three to five years. Obviously, there’s been a series of shifts from it being completely a prohibited substance, to having the inception of the medical marijuana program to having adult use now, which is the fancy term that we all use to refer to recreational marijuana. So you can’t do what I do, which is advise business owners, landowners, and employers, without having to know a little something about marijuana.
Rich: So like you said, the laws have changed dramatically here in the state. And how is it impacting Maine employers, and what kind of work are you doing with them to kind of navigate these waters?
Kristin: So starting a few years ago when the medical program came in earnest and it became easier to get a medical card, a lot of people were getting medical cards. And we also had the enactment of some statutes that gave employees a good deal of protection for using medical marijuana. That started the conversation for sure. It’s always been a very difficult area of HR law to understand the interplay between needing to worry about your employee’s ability to do their job and their medical needs. And that’s always extended to basic pharmaceutical medications. And now it has to extend to medical marijuana as well. And so, you know, that first stage of things has certainly been interesting, and the more difficult I would say of anything to deal with. Because everyone knows that marijuana as a substance can be impairing, and at the same time, we know that it’s widely available, it’s widely used, and extremely beneficial. And in a lot of cases has fewer side effects and less impairment than some of the other pharmaceuticals that people could be on. So we as employers want to embrace people’s access to the drug, but also need to make sure that they don’t have impairment in the workplace.
So step one with medical marijuana, was and remains, to figure out the best way to accommodate people so that they can use to the extent they need to and be able to function normally throughout their day. And that paradigm kind of changes depending on what the job is. If it’s an office job, you’re not so concerned about impairment, as long as somebody is relatively productive. If they’re operating heavy equipment, obviously you have a little bit lower of a threshold that you can tolerate. So that’s the medical side of things.
And then moving now into the adult use world, again the recreational use world where people are widely using. It’s legal, it’s very available, and now it’s a matter of trying to figure out we as employers, do we really care if our employees are marijuana users? And is there some stigma or concern that’s automatically attached to that, or are we really focused on their ability to do their jobs in the workplace? And how do we kind of shift our mindset from testing to kind of filter out those people who are using, to testing and trying to figure out of those people who are using, are any of them impaired in the workplace? Is it affecting their job?
Yury: That sounds like a whole lot of very complex issues from legal, to social, to personal. Wow. You’re definitely into a very exciting industry, that’s for sure. But I wanted to shift our perceptions from just individuals and how they function within the companies, I wanted to focus a little bit on the companies themselves.
So while cannabis is legal in Maine, that’s not necessarily the case across the entire nation. So how does this impact Maine businesses, especially if they do business outside the state? Because as far as I know, it is not legal at the federal level. Am I correct?
Kristin: You are correct. It’s not legal at the federal level. So it depends on the industry, certainly. So there are Maine businesses who never touch a federal contract, they don’t have employees who have federal commercial driver’s license requirements, they don’t have employees who use firearms. A lot of these things where you know that under federal law you cannot have people who are using marijuana.
And so for the average Maine business who’s not involved in those sectors, the main shift right now is to worry about attracting and retaining employees. And if marijuana is becoming on parallel with alcohol, and I think that’s the fair parallel to put on it now within our state, is there any reason to distinguish the two substances in the mind of the average employer?
Now for everyone else, for those industries where they are working with federal grants, let’s take somebody like BIW, for instance. They do have a lot of federal contracts and the terms of some of those contracts are going to specifically say your employees have to be compliant with all state and federal laws. So they cannot knowingly hire employees and put them on a project that’s got those prohibitions.
And then for other employers who are, like you said, working out of state or over state lines, they’d have to worry about the fact that if they’re condoning a certain behavior in the workplace in Maine, it may not be a legal activity elsewhere on another work site, in another state. And also, they might have to worry about employees who are traveling for business and trying to take with them that marijuana that is lawful here, that they are using either with a medical card or recreationally. And now they can’t take it across state lines, and in the process of traveling for work, now they’ve violated a state or federal law. So I’ll weigh more concerned for those employers that are not just strictly local businesses.
Rich: So now that cannabis is legal in the state of Maine for adult recreational use, as well as medical use, do you find that companies are still testing for it, or are they even allowed to test new hires for it?
Kristin: So companies are allowed to test new hires for the whole standard battery of drugs, and that still includes marijuana. So if I were, as an employer, to contact a drug testing facility and ask for a full-dress drug testing panel, that’s probably going to be one of the included substances. So I would have to, as an employer, choose to opt out of that, which an employer can do. So you choose as the employer which substances you want tested, and there’s no requirement to test for marijuana. And in fact, a lot of companies are opting out and including ones that you would be surprised to know our opting out; healthcare industry, some jobs that you would think are somewhat safety, sensitive or more conservative. And the reason is, as just a purely practical matter, testing for cannabis does not necessarily show that someone is likely to be impaired or is actually impaired on the job.
So take your personal feelings about marijuana completely out of the equation as an employer. Is it worthwhile to test for it upfront? Is it going to take people out of the applicant pool who are otherwise very good candidates for the job? And is it going to show something that’s actually a fact that matters to you?
So what you care about is their ability to do the job in the workplace. And the fact that a marijuana test has shown that they’re positive, only means that they’ve used in the last 30+ days does not necessarily show that they’re at any risk for you. And so again, taking that parallel with alcohol, it’s a similar scenario that just because somebody is using alcohol doesn’t mean they’re going to be impaired in the workplace.
Rich: I was planning on asking you this question later, Kristin, but you kind of touched on it, so I just want to ask you. Do you have advice for owners who may be morally opposed to cannabis? Do they have the right to fire or not hire people who are medical or recreational users?
Kristin: I’m glad you said medical or recreational because that’s a distinction. So you can never fire somebody just because they are a medical user or choose not to hire them just because they’re a medical user. So Maine state law actually prohibits that except for in limited circumstances. And that’s kind of going back to the industries that I mentioned before, where a grant would prohibit it, a federal law would prohibit it, or a state law.
But let’s take the example of a retail shop and the owners are morally opposed to marijuana. They certainly can still test for it, not for medical, but for adult use recreational use. They could make the decision not to hire somebody, or in fact to fire somebody, if they don’t pass a drug test.
My advice to them is purely a matter of, is it your morals, or your ability to have the fullest applicant pool and employee pool possible that matters most to you? And if you’re more focused on, like a lot of main businesses are, trying to just attract and hire good people, you might want to consider taking it out of the equation.
And an interesting little wrinkle has been the wide availability of CBD and the fact that it’s not tested for potency. So I’ve had situations where employees have tested positive for cannabis, and they swear that the only thing they’ve ever used is topical CBD and that it’s advertised as being less than 0.1% THC or whatever it says on the bottle. So even for people who themselves are morally opposed to using cannabis but are buying those products because they don’t put it in the same category, some of those would trip up these policies if they’re not careful.
Yury: So does it matter if our employees are using cannabis for medical reasons versus recreational? Because it sounds like there is prescription or prescribed, versus something that the person chooses to. Then it simply feels like we’re operating in this kind of legal parameters of, okay, you are using this for medical, that is kind of off limits. But on the other hand, talking about the CBD, people tend to use it for, I don’t know, you sleep better, you feel better, ways to deal with depression. So it’s like self-medication, but it’s not necessarily regulated. So how can we navigate this very obscure logic or reasons on how to deal with this particular scenario?
Kristin: Yeah. And you raise an interesting point, which is a lot of people have been trying to prognosticate whether the wider availability of adult use and the acceptance of it will result over time in the phasing out of medical. Right now, we’re not really seeing that. The people who are staunch medical users, they have their relationships with their care providers. They have their specific formulas that they know work for them, and they’re wedded to that particular program. And they’re not abandoning just to go to adult use where it’s a little bit more widely available.
And so as long as there’s a little bit of a distinction between those people who are definitely using for medical reasons, and they’re under the care of a medical provider and a caregiver, they are more willing usually to come to the employer and say, “I am using, this is why I’m asking for you to accommodate my use in these ways.” And then the employer looks at the whole situation and figures out how to best manage that.
But on the adult use side of things, you have a lot of people who are unofficially using for medical reasons. And from time to time, you have somebody that is using recreationally, the employer finds that they’ve seemed impaired, they’re not performing up to the standards, and they start asking questions. And it turns out that that person is using adult use marijuana, but for reasons they think are more medical or emotional. And what I always advise employers in that situation is if they’re using it for medical reasons, encourage them to do so and to make it official and to get under the care of somebody so that you can treat it that way. Because it makes things all the more complicated in that scenario where someone is using recreationally but has that medical overlay to it. So always good to have that be official.
But in all of these situations, there’s such a web of things for the employer to think about and to worry about. And that’s why I always try to say, keep it simple. At the end of the day, you’re focused on is the employee doing his or her job properly, appropriately, efficiently, and take all of that noise out of the equation. And how can you focus on bringing them up to a standard at work that lets them do whatever they do on their personal time or whatever they need to do for their medical or emotional needs and still function.
Rich: That is some really interesting advice. Very cool. Kristin, now there are obviously going to be some jobs that are still off limits for cannabis users, and I’m just wondering what jobs are typically that you still need to test for? And it doesn’t matter, you know, as we discuss the medical ramifications versus recreational use, does that matter at all in terms of whether or not somebody can be a pilot or a long trucker if they’re taking cannabis, either medically or recreationally?
Kristin: So for the most part, whether someone is using for medical reasons or recreationally in these job categories where the use is prohibited, there is no distinction. So it’s just a straight prohibition. No marijuana use, no positive tests.
The most common one that impacts Maine employers is definitely commercial driver’s license holders. And there are two categories of CBL. There is the federal for if you’re hauling or going in interstate traffic. And then within the state, there’s actually a slightly different standard. But for the most part, anybody who’s employing commercial drivers is going to test for it, be able to test for it, and most likely be compelled under law to do so.
And lots of other categories too, but certainly student-facing jobs in public schools. No use allowed anywhere on the campus, even if it’s not impairing you during the day. You know, I work more in the public sector, so any employee who has access to a weapon under federal law is not able to be a user in any respect.
And then again, referencing the federal contracts. And that’s really a contract or a grant specific thing. And so even an employer who is going about its merry business and is not concerned about marijuana, they might get this great contract or this great grant opportunity to work with, and they have to look hard at the terms of that program and make sure that their own testing protocols are in place and match up with what the standards of that are.
Rich: You mentioned drivers a few times. And certainly when I first hear that phrase, I think of people driving big rigs. But obviously here in Maine, there are a lot of people who might just be driving a company truck to make deliveries to the local bakery or whatever the case may be, or even situations where maybe somebody is not a typical driver, but they’re willing to drop something off on maybe even just their way home from work or the way into the office. We’ve all had situations like that. Do we need to, as Maine business owners, be aware of these sorts of things and does that all of a sudden add a new wrinkle to it?
Kristin: So I don’t think that the fact that your employees are driving vehicles necessarily means that you need to test. But you need to be aware, first of all, that if there is an accident or a concern in any way about that employee, and you are in the position of knowing that they happen to be a medical user or recreational user, you need to have a testing protocol in place for what you call ‘incident testing’ or ‘provoked testing’. You need to have a facility, you need to have them on speed dial, because we’re going to test, and we want to know what the presence of cannabinoids was in the last couple of hours. You don’t want to send them a couple of days later. That’s not that helpful. So you need to have some sort of a process in place in case an incident does come up. And you need to have an extremely strict zero tolerance policy about your employees not being impaired in any sense during the workday.
And beyond that, there’s no federal or state law in that case that requires you to test, but you certainly could. Because those laws that I mentioned about medical use, they don’t allow for arbitrary discrimination against people who use, but they do allow for discrimination that’s based on a safety sensitive type of a job. And that would include the big rigs as well as the bakery truck.
Yury: Kristine, the question that I want to kind of fast forward into several years, maybe 2025, I’m really interested, how do you envision recreational cannabis impacting socializing in the workplace? Because it’s very common to have happy hours at the bar, getting together, a little bit of a cookout at the local place or sometimes at the workplace. So do you think we’re ever going to get in position when it’s going to be so accepted that you can smoke with your supervisor? Is it ever going to be normal?
Kristin: I think it will. I think it will when it comes right down to it. It’s actually a little bit awkward to take someone that you work with out in the real world, outside of the workplace, and have drinks with them. It’s a little bit different than any interaction we have in the workplace. And the reason that it’s okay is because that’s a socially normalized activity. And the more people start using cannabis recreationally, and the more widely it’s available, that’s going to be a socially acceptable thing to do outside of the workplace. And I think it’s only a natural progression of things that that will happen. But it’s going to take a while.
So when the adult use law passed, the one thing that everyone was adamant about was we’re not going to allow marijuana social clubs. That’s just a bridge too far, and that’s the one prohibition that still exists. And actually, a lot of the towns that I represent, even though you can’t legally under state law have a marijuana social club, they still have ordinances prohibiting them. Because just as a matter of whatever feels wrong to them about it, they want to make sure that’s written in stone.
So I think it’s going to be a long time before you see marijuana social clubs or bars. But I don’t think it’s going to be nearly as long before you see people in informal backyard gatherings for an after-work celebration smoking or using edibles.
Rich: So we won’t have to go to the parking lot at the company party anymore.
Yury: Are there any particular social movements or social activities that are transpiring across the state to help educate some people that are very against utilization of cannabis, or to kind of help people understand that beliefs may have nothing to do with science or any other things like that that may help accelerate this process of acceptance.
Kristin: For sure. And I think that on the medical side of things, the caregiver industry has done a great job of trying to get out the word on how beneficial medical use can be. And the businesses, of course, it’s self-help for them to go out in the world and praise the benefits of their substances that they’re selling. And the more people talk about that on the medical side of things, certainly the more accepted that is.
And then on the recreational use side, I think that it’s maybe a little bit less organized. The public facing side of things to try to get people to normalize and accept the use, it’s more just people starting to talk about it more and starting to use it more and being less embarrassed to admit that they go home and smoke. And that I think is the way that things are going to change socially, is really just one person sees someone else being willing to talk about it or to use it in public – or not in public, which you’re still not allowed to do – but at that backyard barbecue. And then the next person feels more comfortable in doing so.
Rich: Awesome. Kristen, this has been very informative. We ask all of the experts we bring onto the show this same question. so we’re going to pose it to you. What one thing would you change, if you could, to improve the business ecosystem here in Maine?
Kristin: Well, I’m speaking to you from my home office shed, and I would absolutely say that embracing work from home is a great thing for Maine. It’s amazing over the last year how much time I’ve spent in commuting, how much carbon I’ve spent in commuting, and how much more efficient I’ve been. And at the same time, my morale is improved in seeing my family more. And so I think that, you know, I would hope that we don’t go too far and too fast headlong back into our old ways, and kind of embrace home a little bit more while still definitely fostering this really vivid way of doing business that we’ve all been doing over the last year.
Yury: That is a great insight. Kristine, for those who are eager to learn more about the work that you do, or may have questions in relationship to how to properly organize their workspace environments or implement particular testing or other things related to cannabis, where can they find you online?
Kristin: So my bio and my contact information is available at my firm’s website. My firm is Preti Flaherty, and our website is www.preti.com. We have a robust employment group with lots of attorneys ready to help all different industries, and we all have our specialties.
Rich: Awesome. Kristen, thank you so much for stopping by today and sharing your expertise.
Kristin: Thank you very much for having me.
Rich: A lot of interesting information there. If you missed anything, if you want a full transcript of today’s episode, head on over to our website, it’s at fastforwardmaine.com/74. And this is the part of the show where we do our ‘fast takes’, our big takeaway from the episode and the interview. So Yury, hit me, what was your ‘fast take’?
Yury: Wow. Well, I honestly think, and I’m going to put myself in the business owner’s shoes, the main objective of a business is to grow business, satisfy your customers, and have happy employees. And if cannabis use is not impacting the performance of an employee, whether it’s the medical or recreational, it shouldn’t be viewed as some kind of a negative thing or viewed through the lens of negative stigma about the people that use marijuana. As long as the employee is productive, as long as he or she is doing their job, I don’t think it should matter. But that is just my personal opinion. This is my little ‘fast take’. Rich, what is your ‘fast take’?
Rich: I think you bring up a great point. I guess my ‘fast take’ is that there is definitely a difference from an owner standpoint of medical versus recreational usage. And if we’re going to be responsible as an owner, and if we see somebody coming in who maybe we can tell they’re being impaired because they are using marijuana, and they believe it’s because of a medical reason, is to really point them in the direction of going through a caregiver and not just self-medicating. Because I think that just leaves us open to maybe some problems down the road. So that would be my big takeaway.
My ‘fast take’ for the day is just make sure that if there is an issue that comes up, really try and get to the root of it. And if it is medical use, try and get them to go see a caregiver and go through the proper routes to get them the best help, as well as to protect your company.