Code of Maine Rules
94 - INDEPENDENT AGENCIES
348 - MAINE HUMAN RIGHTS COMMISSION
Chapter 3 - EMPLOYMENT REGULATIONS of the MAINE HUMAN RIGHTS COMMISSION
Section 348-3-22 - SPECIFIC ACTIVITIES PERMITTED
Universal Citation: 94 ME Code Rules ยง 348-3-22
Current through 2024-38, September 18, 2024
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 12101
et 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. §§
701
et 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).
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