Marriage, Marijuana & Maine

Question: What happens when an employer is sued for an employment practice that is “wrongful” under state law, but not federal law? Is the employer going to be on the hook for defense and settlement costs? What about fines, penalties, non-monetary damages, or accommodations required by law?

Let’s take a look at Maine’s first medical marijuana employment case. In Thomas v. Adecco Group North America, a 24 year-old Maine employee, Brittany Thomas, recently sued her former employer. She had been asked to return to work following the birth of her child, according to a story in the Portland Press Herald. However, she was not re-hired after telling the company she used marijuana for medical purposes and, predictably, failed the mandatory drug test. Maine law allows the medical use of marijuana, while federal law prohibits possession or use of the drug.

Accordingto Maine statute (22M.R.S.A. Sec. 2423-E2),

2. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

This conflict with federal law leaves Maine employers in a very precarious position which, with any luck, will be clarified with the adjudication of this case and others that will follow. Though Adecco is a worldwide temporary staffing company, this case could just as easily have happened to a mom and pop variety store or mid-sized construction company. Legal costs for defense alone could easily exceed $10,000 before even going to trial. The U.S. Equal Employment Commission indicates that approximately 64% of the nearly 100,000 complaints received by the commission were made without a reasonable cause. Nevertheless, most employers likely had to incur costs to defend themselves.

In the Maine case, Ms. Thomas is accusing her former employer of discrimination for failing to re-hire her. Employment practices liability insurance (EPLI) is designed to provide some measure of protection for employers against these types of claims, and should be considered an integral part of your organization’s risk management plan. If you, the employer, carry employment practices liability insurance, the insurance company may pay some or all of the defense costs and damages, depending on the language in the policy and the nature of the claim. Do you know if you’re covered?

Some of the same questions also may surface when it comes to benefits for same-sex couples. Maine law and federal law are out of sync on this issue, as well, which places employers and their insurance companies in limbo. That’s why Clark Insurance and Pro Search are jointly presenting a breakfast briefing March 7th in Falmouth entitled: Marriage, Marijuana & Maine. This morning event is for employers who are trying to avoid getting stuck in the middle. Employers interested in attending should contact Sandy Trottier at Clark Insurance.

With the medical marijuana case ripening in Maine we suggest a call to Clark Insurance to clarify the extent of your coverage in this uncertain legal environment.