by Laurie Jirak
Distribution of medical marijuana in Minnesota is set to begin July 1, so employers need to understand their rights and responsibilities under the state’s new medical marijuana law.
Confusion may arise because employers are subject to both federal and state laws that may impose different standards or requirements on workplace medical marijuana policies. Although the state has a law allowing medical marijuana use, it isn’t permitted under federal law.
Minnesota’s law goes further than nearly every other state with a medical marijuana law in its protections of employees who are prescribed and use medical marijuana. Minnesota law specifically prohibits discrimination in employment, child custody disputes, organ transplants, and other medical care against individuals who participate in the medical marijuana registry.
Unless failing to do so would violate federal law or regulations or cause a company to lose a monetary or licensing-related benefit under federal law or regulations, employers may not discriminate against a person at any employment stage based on:
- His status as a patient enrolled in the registry program; or
- His positive drug test for cannabis components or metabolites, unless he used, possessed, or was impaired by medical cannabis on the premises of the place of employment during the hours of employment.
What should employers do?
Employers may terminate an employee if permitting medical marijuana use results in federal penalties for the employer or a loss of funding or licensing. If that’s the case, be sure to include clear warning language in the company handbook and drug policy.
Also, you need not eliminate or ignore drug tests. It’s still unlawful to use marijuana recreationally in Minnesota, and employees are prohibited from using, possessing, or being under the influence of medical marijuana at work. You may still administer drug tests in compliance with the state’s Drug and Alcohol Testing in the Workplace Act (DATWA).
The medical marijuana law comes into play, however, if an employee tests positive for marijuana and then can establish that he has a prescription for medical marijuana. The medical marijuana law removes the use of authorized medical marijuana from the list of controlled substances banned under DATWA and allows an employee to “present verification of enrollment in the patient registry as part of the employee’s explanation [under the Act].”
So the new law means that absent current impairment, Minnesota employers may not terminate or otherwise punish an employee who tests positive for marijuana if he shows proof of registration.
Also, Minnesota employers should beware of drug policies that tend to screen out disabled employees. Both the federal Americans with Disabilities Act and the Minnesota law consider the use of certain “qualification standards, employment tests or other selection criteria” that screen out disabled individuals to be discriminatory. Policies that deny employment to someone testing positive for certain prescription drugs (which now include medical marijuana) impermissibly tend to screen out disabled people in need of such drugs.
An employer may still administer the test, but it must respond to the positive results on a case-by-case basis and permit an employee to provide proof of registration as a medical marijuana patient.
For more information on Minnesota’s new medical marijuana law, see the February 2015 issue of Minnesota Employment Law Letter.
Laurie Jirak is an attorney with Felhaber Larson in Minneapolis, Minnesota. She can be reached at firstname.lastname@example.org.