Effective July 29, 2026, the amendments to Maine’s workplace substance use testing law (L.D. 2111) took effect. Those amendments significantly change how employers must administer workplace testing programs. Specifically, the new law revises testing procedures, expands employee protections, clarifies reasonable suspicion standards, and imposes new compliance obligations on employers that conduct substance use testing in the state. Employers with Maine operations should review and update their policies and procedures to ensure compliance.
Narrowed Exemption for Nuclear Power Plant Employers
Previously, employees of nuclear power plants and certain contractors were broadly exempt from the law. The amendments narrow that exemption. To qualify, an employer must now have at least one Maine employee whose testing is federally mandated. The employer, in conducting any substance use testing of applicants or employees for whom substance use testing is not federally mandated, must follow the same federal regulations applicable to the testing of employees for whom substance use testing is federally mandated.
New “Criteria-Based Testing” Option
The law now permits criteria-based testing, allowing employers to test based on objective, predetermined events unrelated to suspected substance use.
Examples may include:
- Work anniversaries;
- Promotions; and
- Customer, client, or worksite access requirements.
Employers using this option must apply the criteria consistently and objectively.
Enhanced Medical Review Officer Oversight
The amendments expand the role and required qualifications of Medical Review Officers (“MRO”s).
Under the amended law:
- Only a MRO may report a confirmed positive test result to an employer;
- The MRO must review positive, adulterated, or invalid test results with the applicant or employee;
- The MRO must consult with the individual’s physician when appropriate;
- The review process must remain confidential; and
- Only substances reportable under Maine law may be disclosed to the employer.
In addition, MROs must possess expertise in substance use disorders and specimen testing and exercise independent medical judgment when evaluating test results.
Additional Protections for Applicants and Employees
Applicants and employees must now be given an opportunity to explain non-negative test results before information is reported to the employer. A non-negative result indicates the presence of a substance above an established cutoff level but has not yet been confirmed through confirmation testing.
If the individual provides a legitimate medical explanation to the MRO or laboratory representative, the employer must be informed accordingly. Employers also may no longer access unconfirmed non-negative test results for current employees and may receive only properly confirmed and reviewed results.
Higher Threshold for Reasonable Suspicion Testing
The amended law revises Maine’s reasonable suspicion testing standards and provides greater guidance regarding when testing is appropriate. Employers may conduct testing when there is a reasonable suspicion, based on observable behavior, that an employee is impaired while working. The amendments further detail what factors, standing alone, do not constitute reasonable suspicion. Moreover, before testing, the individual making the reasonable suspicion determination must provide the employee with a written statement explaining the basis for the reasonable suspicion.
Return to Duty and Rehabilitation Changes
The amendments limit employers to one unannounced return-to-duty test between 90 days and one year after the employee’s positive test. The required rehabilitation period for a first positive test has also been reduced from six months to twelve weeks, and employees are now responsible for rehabilitation-related costs.
New Requirements for Discontinuing Testing Programs
Employers that discontinue their workplace substance use testing program must now notify the Maine Department of Labor. Once a testing policy has been discontinued and approved by the Department, the employer may not restart testing without Department approval unless the testing is required under federal law.
Takeaways for Employers
Maine employers should revisit their substance use testing policies, reasonable suspicion procedures, MRO relationships, and overall compliance practices. Employers should ensure their policies and supervisor training reflect the new requirements before implementing or continuing workplace testing programs.
If you have questions about these changes or need assistance updating your workplace substance use testing policy, training supervisors, or ensuring compliance with Maine employment laws, the attorneys at Martenson, Hasbrouck & Simon LLP are available to help.
Disclaimer: This article is provided for informational purposes only and is not intended to constitute legal advice. Because every employer’s circumstances are unique, readers should consult legal counsel regarding the application of these developments to their specific situation.
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