Overview:
Maine Department of Labor submitted Legislative Document No. 2110 addressing an update to Employer Substance Use Testing Policy Requirements. The bill, which was signed by the governor is effective July 29, 2026. It updates and clarifies statutes governing employers administering substance use testing.
The full text of all changes made can be viewed at: https://legislature.maine.gov/legis/bills/getPDF.asp?paper=HP1425&item=1&snum=132
Discussion:
The 6 key updates are: Providing the opportunity to contest a non-negative result, the requirement that results must be reported to the employer by a medical review officer (MRO), updates to the rehabilitation program opportunity, requiring laboratories to be able to process blood tests and the ability of employers to collect sample from employees.
Requiring that an applicant or employee must be given an opportunity to contest a non-negative result.
Both an applicant and an employee must be given the opportunity to contest a non-negative result. The medical review officer will determine if there is a legitimate medical explanation for the result. Once the medical review officer makes the determination, the result is reported to the employer as either negative or confirmed positive.
Two new definitions, legitimate medical explanation and medical review officer, were added as part of this requirement.
Legitimate medical explanation means an explanation provided by an employee that justifies a confirmed positive result on a test for a tested-for substance. Legitimate medical explanation includes, but is not limited to, use of a controlled substance with a prescription, legal use of cannabis pursuant to the Maine Medical Use of Cannabis Act or any other explanation that, in the professional judgement of the medical review officer, constitutes a legitimate medical use of a tested-for substance.
Review Maine’s Medical Use of Cannabis Act here.
Medical review officer means a person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s substance use test program and evaluating medical explanations for certain substance use test results.
Requiring that results must be reported to an employer by a medical review officer.
Adding the requirement of the results must be reported by a medical review officer resulted in the need to add a definition of a medical review officer and legitimate medical explanation. The medical review officer is required to act independently in carrying out any test reviews or recommendations. In addition, the medical review officer may not be an employee of the employer for which they are performing reviews.
The medical review officer may not disclose the presence or absence of any physical or mental condition of the employee or applicant or the presence of any substances other than those allowed to be tested for under the laboratory testing rules.
Reducing the rehabilitation program opportunity based on a confirmed positive from 6 months to 12 weeks and placing the sole responsibility of the cost on the employee.
An employer may use an employee’s first confirmed positive test result or a refusal to submit to testing as a factor in employment decisions. Before taking any action, the employer shall provide the employee with an opportunity to participate in a rehabilitation program up to 12 weeks in length and designed to dissuade the employee’s future substance use. The cost of this program is the sole responsibility of the employee.
For an employee who has a confirmed positive result and returns to work with the same employer, the employer is permitted to test them once. This unannounced test can be anytime between 90 days and one year after the date of the employee’s confirmed positive test.
Requiring that testing laboratories be able to process blood tests
The employee has the right to obtain other samples. The employee or applicant can request to have a blood sample taken for testing. The employer shall test this blood sample for alcohol or cannabis metabolites and may not test any other sample for these substances. To facilitate this the employer shall ensure that the testing facility and the confirmation testing laboratory accept blood samples and is able to test them.
Allowing an employer that complies with the requirements governing test facilities to be considered a qualified testing laboratory to collect samples from employees.
Previously a screening test that was performed at the point of collection using a device cleared by the federal Food and Drug Administration was only permitted for applicants. This update allows these collections to be performed on employees as well. Although it is still a requirement to send all non-negative specimens to a qualified testing laboratory for confirmation testing.
In addition to permitting a screening test being performed by the employer, the employer may also collect samples from their employees provided their facilities comply with the requirements for collecting specimens.
Technical changes include updates and additions to a few definitions. Most notably were the addition of arbitrary, legitimate medical explanation, medical review officer and observable behavior definitions. Probable cause was updated to reasonable suspicion, and positive test result was updated to non-negative test result.
