June 16, 2015

Medical Marijuana: Are You Ready to Roll with It?

Posted in Application Process, Discrimination, Drug and Alcohol Testing, Drug and Alcohol Testing, Medical Marijuana, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , , , , , at 9:53 am by Tom Jacobson

medical marijuana and the workplace

Medical cannabis can be lawfully dispensed in Minnesota starting July 1, 2015. How will it impact your workplace?

Medical marijuana (technically, “medical cannabis”) can be lawfully dispensed in Minnesota starting July 1, 2015. What does this mean for Minnesota employers?

First, the state’s new medical cannabis law generally prohibits Minnesota employers from using a job applicant’s or employee’s status of being on the medical cannabis registry as a reason for discriminating against that person. In other words, Minnesota employers generally cannot discipline, discharge or refuse to hire someone just because they are on the registry.

The new law also largely prohibits employers from discriminating against employees and applicants who test positive for cannabis unless they used, possessed or were impaired by the drug while at the work site or during work. While proving use or possession should not be too problematic, the law certainly complicates the “impaired by” part of the analysis.

Historically, employers could prove impairment by administering a drug test that complies with the Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”). A positive test under MDATWA opened the door for future disciplinary action or withdrawing a job offer. Now, not only are employers prohibited from discriminating against employees and applicants who test positive, but also employees and applicants will have the right to provide their medical cannabis registration as an explanation for a positive test. While this still does not allow a registered patient to use, possess or be impaired by the drug at work, the challenge is that a positive test for cannabis will not necessarily prove when the employee or applicant used, possessed or was impaired by the drug.

As noted above, these are the general rules. There are a few key exceptions. Specifically, employers may discriminate against those on the state’s medical marijuana registry if failing to do 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, employers who are covered by laws such as the Federal Drug-Free Workplace Act of 1988 or the Omnibus Transportation Employee Testing Act of 1991 will be able to hold registered patients to a higher standard.

Employers also need to recognize that Minnesota’s medical marijuana law differs significantly from comparable laws in other states. Therefore, they should not pay too much attention to what happens elsewhere. For example, in one recent case (Coats v. Dish Network, LLC) the Colorado Supreme Court ruled that Dish Network lawfully fired an employee who tested positive for marijuana, even though that employee was apparently using the drug lawfully under that state’s marijuana laws. Given Minnesota’s prohibition against discriminating against registered patients who test positive, the outcome would probably be different here.

As a practical matter, dealing with the implications of the state’s medical cannabis law should be a relatively rare occurrence. The state estimates there are only 5,000 people (about 0.09% of the entire state) who will qualify to be on the registry (see J. Ehrlich, Minnesota Medical Marijuana: What You Need to Know, MPR News, June 1, 2015). With a labor force of about three million workers (see Minnesota Department of Employment and Economic Development Unemployment Statistics for April, 2015), that means there are probably only 2,700 potential workers statewide who could be on the registry. Given the severity of the conditions for which a person may qualify to be on the registry, the likelihood of those people also being in the workforce is even more remote.

Nevertheless, employers must be prepared to address the workplace challenges presented by Minnesota’s medical cannabis law. Specifically, workplace drug and alcohol policies (particularly MDATWA-compliant testing policies) should be reviewed and revised if needed to take into account the state’s medical cannabis law. And, employers will need to rely on evidence other than a drug test if they want to take action against employees or applicants who they believe have used, possessed or were impaired by marijuana on the work site or during work hours.

For more information, see please 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 Cass, PA

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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

September 24, 2014

Dazed and confused: medical marijuana and the workplace

Posted in Drug and Alcohol Testing, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act, Uncategorized tagged , , at 5:05 pm by Tom Jacobson

Marijuana-leaf_620x414Minnesota’s legalization of medical marijuana is intended to provide relief for patients suffering from a narrow list of qualifying medical conditions. Minnesota employers may, however, feel a bit dazed and confused about its workplace implications. Let’s try to clear that purple haze.

The main thing employers need to know is that the law prohibits them from discriminating in two distinct ways.  First, employers must not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s enrollment in the state’s medical marijuana registry program. In other words, employers cannot take adverse action against someone just because he or she is a patient enrolled in the program.

Second, employers must not discriminate against someone who tests positive for cannabis unless the person used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Thus, being on the registry is not permission to show up stoned or light up at work.

It’s important to note that under this new law, these two forms of discrimination are actually permitted if not discriminating would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations. Because of this exception, employers need to take a close look at whether or not they are subject to any federal laws or regulations or licensing restrictions regarding their employees’ marijuana use.

The law also allows a person to present, as part of his or her explanation of a positive test under Minnesota’s Drug and Alcohol Testing in the Workplace Act, verification of his/her enrollment in the state’s patient registry. Although the verification might help explain the positive test, the law does not say that such a verification justifies using, possessing or being impaired by cannabis at the workplace or during work hours. Thus, employers with MDATWA-compliant drug and alcohol testing policies will need to be prepared to address such explanations if provided.

Finally, although the law passed on May 29, 2014, the workplace implications of medical marijuana will not hit until mid-2015. According to the Minnesota Department of Health, patient registrations will not be accepted until May or June of next year, and medical cannabis will not be available until July 1, 2015. Nevertheless, employers should prepare for this by adopting or modifying workplace drug and alcohol policies, including MDATWA-compliant testing policies, to address these issues.

Still confused? Try a bit of Jimi at Woodstock. Then contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.

The comments posted in this blog 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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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