Portland may have become the first city on the East Coast to legalize recreational marijuana use, but residents who think this means they can light up, even in the privacy of their home, might need to think twice.
Employers will still be able to forbid their employees to use marijuana, and if that employer receives any federal funding, it is expressly prohibited from allowing any employees to use the drug.
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Landlords will still be free to prohibit smoking in any apartments they rent.
And hotels say they aren’t planning to allow guests to smoke marijuana, even in rooms where cigarette smoking is allowed.
Because recreational marijuana still remains illegal at the state and federal levels, it’s unlikely that businesses and other organizations will start allowing employees, tenants or customers to smoke marijuana without consequence, and will be wary of amending any existing policy to accommodate marijuana use.
“I can’t see any of those things changing at all as a result of this vote,” said Christopher Hall, CEO of the Portland Regional Chamber.
In addition to state and federal prohibitions, he said, businesses in Portland have to consider workplace safety and insurance-related issues that could arise from allowing workers, tenants, hotel guests or customers to use marijuana.
“Many employers have a workplace drug policy that is principally related to safety,” Hall said.
Similarly, owners of apartment properties in Portland rarely, if ever, allow tenants to smoke any substance inside the building, he said.
The primary reason is that smoking tobacco, marijuana or anything else can cause a fire, Hall said.
“They don’t want to burn the place down, so you can’t smoke,” he said.
Even in Colorado, where voters approved a statewide referendum in 2012 to legalize adult marijuana use, businesses didn’t change their policies to accommodate legalization, a Denver official said.
Prior to the state referendum, the city of Denver passed a citywide legalization ordinance in 2005.
Kelly Brough, president and chief executive officer of the Denver Metro Chamber of Commerce, said the chamber has worked to ensure that votes in Denver and statewide to legalize marijuana don’t harm the business climate, primarily by successfully protecting a business’s ability to maintain zero-tolerance drug policies for its employees.
Challenges in court to those policies have not been successful, she said.
“We prevailed. Our courts have reinforced that right,” Brough said. “(Businesses) know that they’re still in complete control over what their work environments are like.”
Portland employers who responded to questions from the Maine Sunday Telegram about their policies said they have no plans to alter their employee policies banning marijuana use or stop drug testing even after Tuesday’s vote, saying it’s a question of safety.
“It’s not going to change our policies,” said a spokeswoman for plumbing materials distributor Redlon & Johnson who asked not to be named. “We have drivers, and we can’t allow them to use drugs and alcohol.”
Likewise, city of Portland Human Resources Director Mike Miles said the city’s policies regarding marijuana use would not change.
“Employees are expected to show up for work unimpaired by substances, whether those substances are legal, like alcohol or legal prescription drugs, or illegal,” Miles said. “The passage of the referendum does not change that expectation.”
Any condition that impairs an employee’s ability to work safely may be subject to disciplinary action, he said.
Commercial drivers and others who are subject to random drug screening will not be allowed to test positive for marijuana, Miles said.
“Certain occupations require as a matter of federal law that employees be tested randomly for substance use, and those expectations are unaffected by the referendum,” he said.
The handful of Portland hotels that have smoking rooms, including Embassy Suites Portland, Hampton Inn Downtown Waterfront and La Quinta Inn & Suites, said they still do not permit guests to smoke marijuana.
Only one hotel, La Quinta, said it was seeking further guidance on the issue from its corporate owner.
“I think that probably their lawyer is going to remind them that state law pre-empts the local ordinance,” Hall said. State law makes allowances only for medicinal marijuana.
Even if a recreational user tries to challenge his employer’s drug-use policy, Maine’s courts aren’t likely to take his side, said Mark Dion, a Portland attorney, retired deputy police chief and former Cumberland County sheriff.
Dion said he recently represented a client in an insurance case in which the client’s medicinal marijuana and growing equipment had been stolen.
The court ruled in favor of the insurance company, he said, which refused to reimburse Dion’s client for the stolen items.
Dion said most employers follow drug-free workplace policies established by the state Office of Substance Abuse, which has helped to establish standardized drug-testing protocols.
“They’re trying to ensure employers aren’t creating policies willy-nilly,” he said.
Portland attorney Philip Mancini noted that Maine’s medical marijuana law does not require employers to accommodate an applicant or worker who plans to use marijuana while on the job. The law does prohibit discrimination against qualifying patients who use marijuana at home, he said.
Portland’s recreational marijuana ordinance offers no such protections.
Also, no employer that relies even partly on the federal government in funding, licensing or contracts will allow employee marijuana use, even on the employee’s own time, Mancini said. That would put the company afoul of federal law, which classifies marijuana as a Schedule 1 controlled substance, because it could put the company or organization’s future in jeopardy.
Employers can invoke safety concerns as a reason to prohibit its use, Mancini said.
“You’ve got to remember this: Marijuana is still illegal under federal law,” Mancini said.
Staff Writer Randy Billings contributed to this story.
J. Craig Anderson can be contacted at 791-6390 or at:
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