New Maine Pay Transparency Requirements and Clarification on Substance Use Testing Law Coming July 29

Current Employees

The law requires an employer, upon an existing employee’s request, to disclose the pay range the employer offers for the position the employee currently holds.

Record Retention

Qualifying employers must maintain a record of each employee’s job title and pay history during their employment and for three years after separation, for any reason.

Enforcement

The pay transparency mandated created by LD54 is codified at 26 M.R.S.A. § 622-A. Violations of the pay transparency requirement may result in a fine between $100-$500 for each violation. Employers should take compliance seriously, as the new law provides for immediate funding for a new Department of Labor inspector position to enforce the required pay range disclosures and pay history record retention.

Action Items for Employers

• Review compensation structures to determine whether salary ranges are clearly defined, consistently applied, supported by data, and appropriately documented. 
• Audit and update current internal and external job postings for compliance.
• Contact recruiters and any other third parties posting jobs on behalf of your company to ensure compliance.
• Establish record keeping and retention practices.
• Prepare Human Resources representatives and hiring managers on how to discuss pay ranges and how to respond to pay questions.
• Conduct internal pay equity reviews to identify any unexplained pay disparities or inconsistent compensation practices, and to support long term recruiting and retention goals. 

Changes to Maine’s Workplace Substance Use Testing Law

LD 2110 “An Act to Update Employer Substance Use Testing Policy Requirements” modernizes workplace substance use testing laws and reflects a trend toward balancing workplace safety with employee privacy considerations by prohibiting arbitrary drug testing in the workplace, while continuing to allow reasonable suspicion testing, criteria-based testing, and random testing based on neutral selection methods.

Importantly, the requirement that employers have a Maine Department of Labor-approved testing policy in place prior to seeking to perform drug testing of applicants or employees, remains. This requirement does not apply to employers that are required to comply with federally mandated substance use testing programs.

Clarification of Standards

Prior to its amendment, the law permitted employees to test employees based upon a probable cause standard.  Now, the law requires “reasonable suspicion” defined as “specific and articulable facts that, taken together with rational inferences from those facts, reasonably support the belief” that an employee may be impaired based on observable behaviors.

“Observable behaviors” is defined 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.”

Reasonable suspicion cannot be based solely on information from an anonymous informant or information related to an employee’s off-duty drug use. The updated law, however, permits reasonable suspicion testing following a single work-related accident if the employee’s observable behaviors indicated impairment at the time of the accident. As always, the facts supporting reasonable suspicion must be stated in writing and provided to the employee prior to conducting any test.

The law also permits random testing based on a neutral selection method by which all employees have an equal chance of being selected, as well as criteria-based testing based on a set event, such as an employment anniversary or promotion, and 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.

Review Process

The amended law provides an applicant or employee with a non-negative test result with the opportunity to speak with the medical review officer if the applicant or employee has reason to believe the non-negative result may be attributed to a legitimate medical explanation.

In the event of a confirmed positive result, the law also now requires a medical review officer to contact the employee or applicant to review the confirmed positive result and to evaluate whether a legitimate medical explanation may be at issue. Ascertaining whether there is a legitimate medical explanation may also involve contacting the applicant’s or employee’s physician as well.

Legitimate medical explanations could include use of a controlled substance with a valid prescription, as well as legal use of cannabis pursuant to the Maine Medical Use of Cannabis Act.

Opportunity to Participate in Rehabilitation Program

Before discharging or disciplining an employee or changing an employee’s work assignment following a confirmed positive result or refusal to submit to a test, the employer shall provide the employee with an opportunity to participate for up to 12 weeks (changed from 6 months) in a rehabilitation program. The cost of any such program is the responsibility of the employee (changed from divided equally between the employer and employee if the employer has more than 20 full time employees).

Whether or not the employee participates in a rehabilitation program, if an employee who received a confirmed positive result returns to work with the same employer, the employer may require one unannounced subsequent test between 90 days and one year after the employee’s test.  Of course, the employer may still require the employee to submit to a test during the first 90 days after the prior test in the event there is qualifying reasonable suspicion, random, or criteria-based testing of employees.

Action Items for Employers

• Ensure any non-federally mandated drug testing policies have been approved by the Maine Department of Labor.
• Update drug testing policies and practices to comply with updated law.
• Educate supervisors on how to properly identify and document reasonable suspicion of impairment.
• Confirm random testing procedures rely on neutral selection methods.