Significant revisions to the Maine Substance Use Testing Law, 26 Maine Rev. Stat. 681 et seq., will take effect on July 29, 2026. Maine House Bill 1425 (2025-2026).
New Types of Tests Permitted
Maine law currently permits pre-employment testing, “probable cause” testing, and random testing in certain circumstances. The revised law will permit pre-employment testing as well as:
- Criteria-Based Testing. This refers to testing based on a set event, such as an employment anniversary or promotion. It includes client-required or site-specific testing based on criteria unrelated to substance use, such as when a client requires testing prior to work on a project or specific site.
- “Probable Cause” Testing will now be called “Reasonable Suspicion” Testing. Testing is permitted when an employer has reasonable suspicion to believe that, based on observable behaviors, the employee may be impaired. Reasonable Suspicion means specific and articulable facts that, taken together with rational inferences from those facts, reasonably support the belief that an employee may be under the influence of a substance, except that the existence of reasonable suspicion may not be based exclusively on any of the following:
- Information received from an anonymous informant;
- Information tending to indicate that an employee may have possessed or used a substance off duty, except when the employee is observed possessing or ingesting any substance either while on the employer’s premises or in the proximity of the employer’s premises during or immediately before the employer’s working hours; or
- One Unannounced Test After Returning to Work. If an employee receives a positive test result and returns to work after participating in a rehabilitation program, the employer may require one unannounced subsequent test between 90 days and one year after the date of the employee’s prior test. Maine law does not permit termination of an employee after a first-time positive test result; the employee must be provided an opportunity to participate in a rehabilitation program for up to 12 weeks (previously six months).
Additionally, the definition of random testing has been revised to mean “a neutral selection method by which all employees have an equal chance of being selected for substance use testing.”
The employer’s written policy must identify which positions, if any, will be subject to criteria-based testing or random testing. Approval of the employer’s written policy is required by the State Department of Labor.
Other Key Provisions
Applicants and employees must be given the opportunity to contest a non-negative test result by discussing with the medical review officer or confirmation testing laboratory representative any legitimate medical explanation for the non-negative test result. A confirmed positive test result may be reported to an employer only by a medical review officer. The medical review officer may not disclose any physical or mental condition of the applicant or employee to the employer. Employers must ensure the collection facility and laboratory used by the employer have the ability to test blood samples (if an employee requests that a blood sample be drawn at the time of testing). Employers who intend to discontinue testing under their approved substance use testing policy must notify the Department of Labor in writing and may not resume testing until they notify the Department that they intend to do so.
Marijuana
The use of medical marijuana under state law is deemed a “legitimate medical explanation” that justifies a positive drug test result.
Exempt Employers
Employers will be exempt from the Maine Substance Use Testing Law only if they have at least one employee located in Maine for whom substance use testing is federally mandated (e.g., Department of Transportation testing) and the testing of non-federally-mandated employees follows the same federal regulations.
What This Means For Employers
The new law gives Maine employers more options for substance use testing, including customer-required pre-access testing, and annual testing, for example. But employers also should be cautious if they test for marijuana in Maine because off-duty use of marijuana is protected and medical marijuana now is a legitimate medical explanation for a positive test result. Employers should review their existing testing policies to ensure that they follow all aspects of the revised law. Jackson Lewis attorneys are available to assist.