Maine Amends Workplace Drug-Testing Rules

Highlights

The Details

Maine has enacted legislation to amend state rules governing workplace substance-use testing programs. The changes take effect on July 29, 2026. 

The amendment includes the following changes:

• Mandates that employers who choose to conduct testing follow the procedures of their substance use testing policy fully once a test has been initiated.
  
• Requires that an applicant or employee be given an opportunity to contest a non-negative result by asserting that they have a legitimate medical explanation (as defined below). The amended law defines a non-negative result as one that indicates the presence of a substance in the tested sample above the cutoff level of the test, but that hasn’t been confirmed by a confirmation test.
  
• Establishes that only a medical review officer may provide a confirmed positive result to an employer.
  
• Clarifies that authorization from the Maine Department of Labor is required for any substance-use testing program, even for employers with collective bargaining agreements.
  
• Extends certain requirements for positive results to non-negative results.
  
• Replaces the term “probable cause” with “reasonable suspicion” and replaces the term “arbitrary testing” with “criteria-based testing” throughout the rules and clarifies the provisions governing such tests.
  
• Introduces and clarifies various terms, such as criteria-based testing, random testing, and observable behavior.
  
• Makes clear that for the purposes of an employee’s right to request that a blood sample be taken, employers must ensure that their testing facility and confirmation testing laboratory can test blood samples.
  
• Reduces from six months to 12 weeks the time frame that employers must allow an employee an opportunity to participate in a rehabilitation program after a confirmed positive result, and places the sole responsibility of the cost on the employee (when it isn’t covered by group health insurance).
  
• Allows an employer to administer the testing, but only if their facilities comply with the requirements for a qualified testing laboratory. 
  
• Clarifies that if an employee returns to work with the same employer after a confirmed positive result, the employer may require that the employee submit to one unannounced subsequent substance use test anytime between 90 days and one year after the date of the employee's prior test.
  
• Requires that an employer notify the Maine Department of Labor in writing if the employer intends to discontinue an approved substance use testing policy.
  
• Adopts other technical changes.

Opportunity to Contest Non-Negative Results

Under the amended rules, employers must give an applicant or employee 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. 

If the medical review officer or laboratory representative determines that there is a legitimate medical explanation for the non-negative test result, the result must be reported to the employer as a confirmed positive result with a legitimate medical explanation. 

If the medical review officer or laboratory representative determines that there is no legitimate medical explanation for the non-negative test result, the result must be reported to the employer as a confirmed positive result.

As defined by the amendment, legitimate medical explanation is one provided by an employee that justifies a confirmed positive result on a test for a substance, including:

• Use of a controlled substance with a valid prescription, prescribed for a legitimate medical purpose in a quantity appropriate for the condition and expected duration with levels consistent with prescribed amounts; or
  
• Legal use of cannabis under the Maine Medical Use of Cannabis Act.

The amended rules also require that the medical review officer have knowledge and clinical experience of controlled substance-use disorders and be knowledgeable in deviations of substance-use testing specimens and causes of invalid testing results. The medical review officer must act independently in carrying out any testing reviews.

Reporting Test Results

A confirmed positive result may be reported to an employer only by a medical review officer. The medical review officer must contact the employee or applicant and, if necessary, the employee’s or applicant’s physician to review each confirmed positive result or any test found to be adulterated, substituted or otherwise invalid to determine whether there is a legitimate medical explanation for the result. 

The medical review officer is prohibited from disclosing the presence or absence of any physical or mental condition of the employee or applicant or the presence or absence of any substances other than those allowed to be tested for under the Department of Health and Human Services laboratory testing rules.

Reasonable-Suspicion Testing

The amendment clarifies that an employer may require or request that an employee submit to a substance-use test if the employer has reasonable suspicion that, based on observable behaviors, the employee may be impaired, provided that both the following criteria are met:

• The employee's immediate supervisor, other supervisory personnel, a licensed physician or nurse, or the employer's security personnel makes the determination of reasonable suspicion.
• The individual above states, in writing, the facts upon which the determination is made and provides a copy of the statement to the employee prior to conducting the test.

The amendment also makes clear that employers are prohibited from basing a reasonable suspicion test solely on a single work-related accident without the employee also exhibiting observable behavior indicating impairment at the time of the accident. 

The amended rules define observable behavior as observable physical, behavioral or psychological signs that can be seen, heard, smelled or otherwise observed that provide a reasonable suspicion that an employee is impaired by substance use, including signs regarding appearance, behavior, speech or odor that are usually associated with substance use.

Random and Criteria-Based Testing

The amended rules define random testing as a neutral selection method by which all employees have an equal chance of being selected for substance use testing. 

The rules define criteria-based testing as a practice in which the frequency of substance-use testing and the selection of individuals to be tested are based on a set event, such as an employment anniversary or promotion. This testing 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.

In addition to testing employees on a reasonable-suspicion basis, an employer may require or request that an employee submit to a substance-use test on a random or criteria-based basis if:

• The employer and the employee have bargained for provisions in a collective bargaining agreement that provide for such testing;
  
• The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee's coworkers if the employee were under the influence of a substance; or
  
• The employer has established a random or criteria-based testing program that generally applies to all employees, regardless of position. This provision is subject to the following rules:
  

Note: Under existing rules, employers must establish an employee committee to develop the policy on random testing. Once the new law takes effect, establishing a committee will no longer be required.

Review the full text of the law for additional changes and details.

Next Steps

Employers with substance-use testing programs should read the law in full and review their policies and practices and ensure compliance with the amended rules.