In 2016, Maine voters approved a referendum that legalizes use of recreational marijuana in the state. Among other things, the referendum prohibits employers from discrimination against employees based on off-duty marijuana use. Earlier this month, the Maine Department of Labor issued model testing rules for employers, and they remove marijuana from the list of drugs that should be tested under the state’s controlled substance testing law. Maine therefore becomes the first U.S. state to explicitly protect employees who use marijuana for recreational or medical reasons away from work.

Where does this change leave employers? Federal DOT drug testing requirements pre-empt state laws and still apply to drivers of commercial motor vehicles and other covered employees. While employers may not be able to discipline or discharge employees based solely on a positive test for marijuana, they can still prohibit use or possession in the workplace and take disciplinary action if an employee is considered to be intoxicated at work. In the past, employers relied on drug tests to confirm such use, but supervisor observations, co-worker statements, and other evidence of on-the-job use may become the accepted method for justifying disciplinary action.

Other states that have legalized recreational marijuana use may follow suit. As legal marijuana becomes more accepted in these states, users (and taxpayers) are more likely to call for legal protections from adverse employment actions. The Maine legislature reacted to this development by introducing proposals intended to overhaul and update the state’s drug testing laws in light of the referendum