February 23, 2015

Medical Marijuana in the Minnesota Workplace

Posted in Application Process, Drug and Alcohol Testing, Drug and Alcohol Testing, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , at 6:34 pm by Tom Jacobson

medical marijuana and the workplaceThis morning I had the opportunity to give a Minnesota Continuing Legal Education presentation on the workplace impacts of Minnesota’s legalization of medical marijuana at the 2015 Public Sector Labor and Employment Law Update in Minneapolis.

In short the state’s legalization of medical marijuana (technically, medical “cannabis”) could prove to be very challenging for Minnesota employers. Generally, the law prohibits employers from taking adverse action against applicants and employees who are on the medical cannabis registry and test positive for cannabis components or metabolites.

There are exceptions to that general rule. For example, even when employees are on the registry, the law does not allow them to use, possess, or be impaired by medical cannabis on the work premises or during the hours of employment. Use and possession would be relatively easy to prove, but the presence of cannabis components or metabolites does not necessarily equate to impairment. Consequently, a positive drug test without evidence of impairment (especially following a random test) may be of little value.

Similarly, a positive test result during a pre-employment drug screen of an applicant who is on the registry may also be of little value. After all, because applicants are not yet employees, any impairment could not possibly be “during the hours of employment.” Thus, employers may be left with looking into whether or not the applicant used, possessed or was impaired by medical marijuana on the work premises.

Another exception allows employers to discriminate against employees and applicants who are on the registry if not doing so would violate federal law or regulations or cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. Thus, for example, it is likely that for jobs requiring a commercial driver’s license subject to federal DOT regulations, employers may discriminate against those who are on the registry.

As a practical matter, the legalization of medical marijuana will affect relatively few Minnesota employers as the law is currently written. It has been estimated that only 5,000 Minnesotans will qualify for the registry (WCCO reports that only about 1,000 to date have expressed interest). And, those who do are unfortunately suffering from a short list of serious impairments, many of which will likely keep them out of the workforce. Thus, it should be a rare occurrence for an employer to need to address this issue. However, the potential expansion of the list of reasons for getting on the registry would greatly increase the chances that employers will be faced with these challenges.

As a result, employers must be prepared to deal with these issues. This means training employees to recognize signs of use, possession and impairment, and proactively amending policies to be prepared for these challenges before they arise.

Finally, employers and employees need to keep in mind that medical cannabis cannot be made available in Minnesota until July 1, 2015. So any positive test results until then cannot be excused by being on the registry.

For more information about this article, please see Dazed and Confused: Medical Marijuana and the Workplace, or contact me at taj@alexandriamnlaw.com.

The comments posted in this article are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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