94-348-3 Me. Code R. § 22

Current through 2024-44, October 30, 2024

Section 348-3-22 - SPECIFIC ACTIVITIES PERMITTED

The following shall not be unlawful under this chapter or the Act:

1.Age

A.Apprenticeship programs. For labor organizations and employers to adopt a maximum age limitation in apprenticeship programs if the employer or labor organization obtains prior approval from the Maine Human Rights Commission of any maximum age limitation employed in an apprenticeship program. The Commission shall approve the age limitation if a reasonable relationship exists between the maximum age limitation employed and a legitimate expectation of the employer or labor organization in receiving a reasonable return upon their investment in an apprenticeship program. The employer or labor organization bears the burden of demonstrating that such a relationship exists.

B. To discriminate on account of age to comply with the state or federal laws relating to the employment of minors.

C. On account of age, to observe the terms of any bona fide employee benefit plan such as a retirement, pension or insurance plan that does not evade or circumvent the purpose of the Act and which complies with the Age Discrimination in Employment Act, United States Code, Title 29, Section 621, as amended, and the Americans with Disabilities Act, 42 United States Code, Section 12101et seq., and federal administrative interpretations thereof, including 29 C.F.R. § 1625.10, provided that the benefit does not require or permit any employer to refuse or fail to hire an applicant because of the age of the individual; and provided that the benefit plan does not require or permit the denial or termination of employment of any individual because of the age of the individual or after completion of a specified number of years of service.

D.Bona fide seniority systems

(1) For an employer, employment agency, or labor organization to observe the terms of a bona fide seniority system that is not a subterfuge to evade the purposes of this chapter or the Act except that no such seniority system shall require or permit the involuntary retirement of any individual because of the age of such individual.

(2) Though a seniority system may be qualified by such factors as merit, capacity, or ability, any bona fide seniority system must be based on length of service as the primary criterion for the equitable allocation of available employment opportunities and prerogatives among younger and older workers.

(3) Adoption of a purported seniority system which gives those with longer service lesser rights, and results in discharge or less favored treatment to those within the protection of the Act, may, depending upon the circumstances, be a "subterfuge to evade the purposes" of the Act.

(4) Unless the essential terms and conditions of an alleged seniority system have been communicated to the affected employees and can be shown to be applied uniformly to all of those affected, regardless of age, it will not be considered a bona fide seniority system within the meaning of the Act.

(5) It should be noted that seniority systems which segregate, classify, or otherwise discriminate against individuals on the basis of other protected classes than age are also prohibited under the Act, where the Act otherwise applies. The "bona fides" of such a system will be closely scrutinized to ensure that such a system is, in fact, bona fide.

E.Federal requirements. This chapter shall not be construed to affect or limit any power or duty relating to pension or retirement plans which the United States Government reserves to itself.

F. As specified in 29 C.F.R. § 1625.31, all activities and programs under Federal contracts or grants, or carried out by the public employment services of the several States, designed exclusively to provide employment for, or to encourage the employment of, persons with special employment problems, including employment activities and programs under the Manpower Development and Training Act of 1962, Pub.L. No. 87-415, 76 Stat. 23 (1962), as amended, and the Economic Opportunity Act of 1964, Pub.L. No. 88-452, 78 Stat. 508 (1964), as amended, for persons among the long-term unemployed, individuals with disabilities, members of minority groups, older workers, or youth.

G. Coordination of retiree health benefits with Medicare or a comparable State health benefit plan, as specified in 29 C.F.R. § 1625.32.

2.Physical or mental disability

With regard to individuals with physical or mental disabilities:

A.Claims of no disability. Nothing in this chapter shall provide the basis for a claim that an individual without a physical or mental disability was subject to discrimination because of their lack of physical or mental disability, including a claim that an individual with a physical or mental disability was granted an accommodation that was denied to an individual without a physical or mental disability.

B.Infectious and communicable diseases; food handling jobs -

(1)In general. In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the United States Secretary of Health and Human Services under the Americans with Disabilities Act, Title I, Section 103(d)(1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign the individual a job involving food handling.

(2) Nothing in this chapter or the Act may be construed to preempt, modify or amend any state, county or local law, ordinance, rule or regulation applicable to food handling that is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the United States Secretary of Health and Human Services.

C.Health insurance, life insurance, and other benefit plans -

(1) An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with State law.

(2) A covered entity may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.

(3) A covered entity may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.

(4) The activities described in subparagraphs (C) (1), (2), and (3) of this sub-section are permitted unless these activities are being used as a subterfuge to evade the purposes of this chapter or the Act.

3.Regulation of alcohol and drugs. A covered entity:

A. May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

B. May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

C. May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988, 41 U.S.C. §§ 701et seq.;

D. May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the entity holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism; provided that an employer shall make reasonable accommodation to an alcoholic or drug user who is seeking treatment or has successfully completed treatment;

E. May require that its employees employed in an industry subject to such regulations comply with the standards established in the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, regarding alcohol and the illegal use of drugs; and

F. May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense and Transportation and of the Nuclear Regulatory Commission that apply to employment in sensitive positions subject to such regulations.

4.Drug testing -

A.General policy. For purposes of this chapter, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the administration of such drug tests by a covered entity to its job applicants or employees is not a violation of § 13(2) of this chapter. However, this chapter does not encourage, prohibit, or authorize a covered entity to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.

B.Transportation employees. This chapter does not encourage, prohibit, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to:

(1) Test employees of entities in, and applicants for, positions involving safety sensitive duties for the illegal use of drugs or for on-duty impairment by alcohol; and

(2) Remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to subparagraph (B)(1) of this paragraph.

C.Confidentiality. Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of § 13(B)(2) and (3) this chapter.

5.Regulation of smoking

A covered entity may prohibit or impose restrictions on smoking in places of employment. Such restrictions do not violate any provision of this chapter.

6.Records

A. After employment or admission to membership, to make a record of such features of an individual as are needed in good faith for the purpose of identifying them, provided the record is intended and used in good faith solely for identification, and not for the purpose of discrimination in violation of this chapter or the Act. Records of features regarding physical or mental disability that are collected must be collected and maintained on separate forms and in separate files and be treated as confidential records; or

B. To record any data required by law, or by the rules and regulations of any state or federal agency, provided the records are recorded and kept in good faith for the purpose of complying with law, and are not used for the purpose of discrimination in violation of this chapter or the Act

7.Federal Indian policy

For any business or enterprise on or near an Indian reservation to follow any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because they are an Indian living on or near a reservation.

8.The national security exception

It is not unlawful under this chapter or the Act to deny employment opportunities to any individual who does not fulfill the national security requirements stated in 42 U.S.C. § 2000e-2(g).

94-348 C.M.R. ch. 3, § 22