MEDICAL CANNABIS AND EMPLOYMENT ISSUES: WHAT EMPLOYERS NEED TO KNOW

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BY: Bradley A. Kletscher

In July 2015, medical cannabis became legal in Minnesota for a limited purpose. Under this new law, persons registered under Minnesota’s Medical Marijuana Law (“MMML”) can engage in possession and use of “medical cannabis”. Under MMML, medical cannabis means “any species of the genus cannabis plant, or any mixture or preparation of them delivered in liquid or pill form.” Patients can use a vaporized delivery so long as it does not require leaves. In order to register, a health care practitioner must certify that a patient suffers from a “qualifying medical condition.”  After patients receive certification, they have 90 days to submit a patient application for enrollment to the registry program. Patients have to reapply annually within 90 days of the original submission anniversary if they want to keep their use legal. Qualified persons are not allowed to use the medication in any public place, including public transit, school grounds, or while operating types of transportation.

Once patients are successfully registered, they receive some protections. Following successful registration, use or possession of medical cannabis is not a state civil or state criminal violation. Employers should be aware that unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing related benefit under federal law, employers are restricted from discriminating against a person in hiring, termination or any other term or condition of employment based on: (1) the person’s status as a patient enrolled in the registry program; and (2) a patient’s positive drug test unless the patient used, possessed or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

Interaction with state laws

The Minnesota Drug and Alcohol Testing statute (MDAT) governs drug testing in the workplace. If Minnesota employers determine to conduct drug tests, they must have a written drug and alcohol testing policy. This policy must specify when employees and job applicants are subject to testing. Employees being tested may present a verification of enrollment in the patient registry under the MMML as an explanation for failing the test. Once an employee shows the registration card, there is a presumption that the patient is engaged in authorized usage of cannabis. This presumption can be rebutted by evidence that conduct related to use of medical cannabis was not for the purpose of treating or alleviating the patient’s qualifying medical condition or symptoms of the condition.

MMML does not explicitly provide that possession or use of medical cannabis is prohibited on an employer’s property. However, an employer may take adverse action if the employee used medical cannabis on the employer’s premises during the hours of employment and failed a drug test.

Under the Minnesota Human Rights Act (“MHRA”) certain employers have to provide reasonable accommodations to their employees absent undue hardship on the operation of the business. It is possible that Minnesota courts could interpret reasonable accommodation under the MHRA to include allowing a registered patient under the MMML to possess medical cannabis on an employer’s premises so long as the patient is not using it during working hours. However, there is no case in Minnesota deciding this issue yet.

The Minnesota Lawful Consumable Products Act (“MLCPA”) provides that an employer (private) may not refuse to hire a job applicant or discipline or discharge an employee because they engage in or have engaged in the use of lawful consumable products if it takes place off the employer’s property and during nonworking hours. Since medical cannabis is lawful under state law, employers could be prohibited from adverse action against employees who engaged in such activity. The issue is whether the conduct has to be lawful under both federal law and state law. At least one court from Colorado has found that in order to be “lawful” the conduct must be lawful under both state and federal law. Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

Interaction with Federal laws:

Medical cannabis is still an illegal substance under the federal Controlled Substance Act. (“CSA”). The U.S. Supreme Court failed to create an exception for medical cannabis. Gonzales v. Raich, 125 S.Ct. 2195 (2005).

Under the American with Disabilities Act (“ADA”) it is clear that the employer does not have a duty to provide reasonable accommodations to a registered medical cannabis user, it is no clear under the MHRA as discussed above.

Federal law requires drug and alcohol testing of safety-sensitive transportation employees in some business segments. The Department of Transportations regulations do not recognize medical cannabis as an appropriate medical reason for a transportation employee’s positive drug test even when it is legal under state law. If employees are employed in an industry subject to the Department of Transportation drug testing, then they can be subject to adverse action.

Conclusion

It is unclear how Minnesota courts will treat medical cannabis in the workplace. As a result, employers should make sure their drug and alcohol testing policy is up to date with the current requirements of the medical cannabis law. Employers should also review and revise other policies to make sure that the policies are in compliance with the medical cannabis law.

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