Maine Revises Workplace Drug Testing Law

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Quick Hits

• Maine Governor Janet Mills recently signed a bill that updates the state’s existing substance use testing law to prohibit arbitrary drug testing in the workplace.
• The new provisions permit drug testing based on reasonable suspicion of impairment, criteria-based testing, and random testing based on neutral selection methods.
• The law will take effect on July 29, 2026.

The legislation updates Maine’s existing substance use testing law as follows:

• Employers are permitted to perform “criteria-based” testing.
• “Observable behavior” and “random testing” are defined.
• Employers are required to give employees and job applicants an opportunity to contest a “non-negative test result,” meaning “a test result that indicates the presence of a substance … above the cutoff level[,] but that has not been confirmed by a confirmation test.”
• Employers are required to ensure the testing facility and confirmation testing laboratory has the ability to test blood samples.
• Medical review officers are required to report test results to employers.
• Employers may comply with the requirements governing drug testing facilities to be considered a qualified testing laboratory to collect samples from employees.

In a departure from the earlier drug testing law, the updated law prohibits arbitrary drug testing for all employees and instead allows random, reasonable suspicion, and criteria-based testing. The law defines “random testing” as a neutral selection method by which all employees have an equal chance of being selected for testing. Criteria-based testing is defined to include testing based on set events unrelated to substance use, such as an employment anniversary or a promotion.

An employer with an approved drug testing policy still may require a specific worker to take a drug test if it has a reasonable suspicion of impairment, based on observable behaviors, including appearance, behavior, speech, and odor, that are usually associated with substance use. The employer must state in writing the facts supporting its reasonable suspicion that the employee is impaired and provide the statement to the employee prior to conducting the test. Notably, and consistent with the current law, reasonable suspicion cannot be based on information from an anonymous informant or information related to an employee’s off-duty drug use. The updated law permits reasonable suspicion testing following a single work-related accident if the employee’s observable behavior indicated impairment at the time of the accident.

The updated law indicates that an applicant or employee with a non-negative test result must be given an opportunity to speak with the medical review officer or laboratory representative if the applicant or employee believes the non-negative result is due to a legitimate medical explanation. If the medical review officer or laboratory representative determines that there is a legitimate medical explanation for the non-negative result, the result must be communicated to the employer as a “confirmed positive with a legitimate medical explanation.”

In addition, the law requires medical review officers to (1) review confirmed positive results with applicants and/or employees and (2) determine whether a legitimate medical explanation may explain it. This process may involve contacting the applicant or employee’s physician if necessary.

Following receipt of a confirmed positive test result or a refusal to submit to drug testing, employers must provide employees with the opportunity to participate in a rehabilitation program for twelve weeks (updated from six months), prior to discharging an employee, disciplining an employee, or changing an employee’s work assignments. The employer does not have to pay the cost of the rehabilitation program.

In Maine, employers cannot legally fire or discipline employees for legal, off-duty use of marijuana. They can fire or discipline employees for drug use, possession, or impairment at the workplace.

Maine employers seeking to perform drug testing of applicants or employees must first have a written drug testing policy approved by the Maine Department of Labor. To be approved, the  written drug testing policy must contain information about which jobs will be subject to drug testing, the substances for which the test screens, the cutoff levels for screening tests and confirmation tests, the consequences for a positive test result, the procedure for appealing a positive test result, and any opportunities for partaking in a rehabilitation program.

The Maine law does not apply to employers that are required to comply with federally mandated drug testing programs, such as for safety-sensitive jobs in transportation and law enforcement.

Next Steps

Employers in Maine may wish to review and update their drug testing policies and practices to comply with the updated law before July 29, 2026, and further to ensure their policies have been approved by the Maine Department of Labor. They may wish to carefully document their reasons for drug testing based on a reasonable suspicion of impairment, but this does not have to meet the higher legal standard of probable cause.

Employers also may wish to carefully document their reasons for firing or disciplining an employee for failing a drug test or refusing to take a drug test. Although legal protections exist for off-duty marijuana use, the law does not permit workers to possess, consume, or be impaired by drugs while on duty at the workplace.

Ogletree Deakins’ Portland office and Drug Testing Practice Group will continue to monitor developments and will post updates on the Drug Testing, Maine, and Workplace Safety and Health blogs as additional information becomes available.

Further information on state law requirements is available on the Ogletree Deakins Client Portal in the Drug and Alcohol Testing, Recreational Marijuana, and Medical Marijuana law summaries. Full law summaries and template policies are available for Premium and Advanced-level subscribers; Snapshots and Updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Aimee B. Parsons is a shareholder in Ogletree Deakins’ Portland office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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