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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Medi-juana and the Workplace: Examining Employees’ Protections Under Minnesota’s Medical Cannabis Law

In July 2015, medical cannabis became legal in Minnesota—thereby opening a new set of questions for Minnesota courts and state employment law. Here’s what attorneys and employers need to know about the new law’s provisions, its interactions with other state and federal statutes, and the evolving case law from other states.

On May 29, 2014, Minnesota joined the District of Columbia and 22 others states in authorizing the distribution and use of medical marijuana. By July 1, 2015, 41 patients were registered to receive medical marijuana from two licensed manufacturers: Leafline Labs and Minnesota Medical Solutions. As of October 16, 2015, 618 patients had been registered.1 Since Minnesota’s Medical Marijuana Law (MML) provides protections for registrants, employers should beware of its impact upon the workforce.2

Overview of the MML

Persons registered under the MML’s patient registry program can engage in possession and use of “medical cannabis.” Under MML, medical cannabis means “any species of the genus cannabis plant, or any mixture or preparation of them delivered in a liquid or pill form.”3 Patients can use a vaporized delivery so long as it does not require leaves. First, a health care practitioner4 must certify that a patient suffers from a “qualifying medical condition.” Under the MML, the qualifying medical conditions are cancer, glaucoma, HIV/ AIDS, Tourette Syndrome, Amyotrophic Lateral Sclerosis (ALS), seizures, Crohn’s Disease, terminal illness (with a life expectancy of less than a year), or any other medical condition or treatment approved by Commissioner of Health.5 (However, persons suffering from cancer or a terminal illness must show at least severe or chronic pain, nausea or severe vomiting, or cachexia or severe wasting.)

After patients receive certification, they have 90 days to submit a patient application for enrollment in the registry program. Patients will have to reapply annually within 90 days of the original submission anniversary.6 They are not allowed to use the medication in any public place, including public transit and school grounds, or while operating certain types of transportation.

Once patients are successfully registered, they receive a wealth of protections. Use or possession of medical cannabis is a not state civil or state criminal violation.7 Lawyers are protected from disciplinary action by the Minnesota Supreme Court or the Office of Lawyers Professional Responsibility for providing legal assistance to prospective or registered manufacturers or others.

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 term or condition of employment, or otherwise penalize a person based on:

  • The person’s status as a patient enrolled in the registry program; and
  • 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
Minnesota Drug and Alcohol Test (MDAT)8

The Minnesota Drug and Alcohol Testing statute governs drug testing in the workplace. If Minnesota employers decide to drug test, they must have a written drug and alcohol testing policy specifying, among other things, when employees or job applicants are subject to testing. Employees being tested may present a verification of enrollment in the patient registry 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 use. This presumption can be rebutted by evidence that conduct related to use of medical marijuana was not for the purpose of treating or alleviating the patient’s qualifying medical condition or symptoms of the condition.

Minnesota Human Rights Act (MHRA)9

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

The Minnesota Human Rights Act applies to employers who have one or more employees residing and working in Minnesota. Under the Act, certain employers have to provide reasonable accommodations to their employees absent undue hardship on the operation of the business. Minnesota courts might interpret the reasonable accommodation under MHRA to include allowing a patient registered under MML to possess medical marijuana on an employer’s premises so long as the patient is not using it during working hours.

Minnesota Lawful Consumable Products Act (MLCPA)10 

The Minnesota Lawful Consumable Products Act provides that private employers 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 premises and during nonworking hours. Since medical marijuana is lawful under state law, employers could be prohibited from adverse action against employees who engaged in such activity. However, as discussed below in Coats. v. Dish Network, the Minnesota courts will have to decide whether the activity must be lawful under both federal and state law.

Interaction with Federal Laws

Medical marijuana is still illegal under the federal Controlled Substance Act (CSA). The U.S. Supreme Court, in Gonzales v. Raich,11 failed to create an exception for medical marijuana. Since that decision, Congress has yet to amend the CSA to include an exception for medical marijuana.

Americans with Disabilities Act (ADA)12

Title I of the ADA prohibits an employer from treating a qualified individual unfavorably on the basis of disability with regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Qualified individuals are individuals with a disability and include both employees and job applicants. Under the ADA, discriminating against an individual includes failure to provide a reasonable accommodation. While it is unclear whether employers need to provide reasonable accommodation of possession of medical marijuana under the Minnesota Human Rights Act, the ADA is clear that the employer does not have to provide one. Under the ADA, qualified individuals do not include employees or job applicants currently engaging in use of illegal drugs.13 Because medical marijuana is still illegal under federal law, registry patients are not qualified individuals under the ADA.

Department of Transportation Laws and Regulations

Federal law requires drug and alcohol testing of safety-sensitive transportation employees in some industries. The Department of Transportation’s regulations do not recognize medical marijuana as a valid medical explanation for a transportation employee’s positive drug test even when it is legal under state law.14 If employees work in an industry subject to Department of Transportation drug testing, then they can be subject to adverse action.

Case Law in Other States

While no case for improper termination or discrimination under MML has yet been brought before the Minnesota courts, courts in other states have generally sided with employers.

Colorado
Coats v. Dish Network, LLC (2015)15

Brandon Coats, a quadriplegic confined to a wheelchair, was issued a state medical marijuana license to treat painful muscle spasms. Coats consumed medical marijuana in accordance with Colorado state law, at his home and after work. He later tested positive for THC, a component of marijuana, during a random drug test required by his employer. Even after informing Dish Network that he was registered to use medical marijuana, the company still fired him for violating the company drug policy. Coats then brought suit claiming that he was protected under Colorado’s lawful activities statute, which is similar to the Minnesota Lawful Consumable Products Act.

The Colorado Supreme Court held that the term “lawful activity” was not restricted in any way, and declined to put a state-law limitation onto the term. It held that in order to be “lawful,” the activity had to be lawful under both state and federal law. Therefore, the Court concluded, Coats was not protected under the statute.

California
Ross v. RagingWire Telecommunications, Inc. (2008)16

Gary Ross, who suffers from strain and muscle spasms in his back as a result of injuries he received during his time in the United States Air Force, is considered an individual with a disability under California’s Fair Employment and Housing Act (FEHA). He receives government disability benefits. He began using medical marijuana under his physician’s recommendation pursuant to California’s Compassionate Use Act. RagingWire Telecommunications offered him a job and required him to take a drug test. Before taking the test, he showed the administrator a copy of his physician’s recommendation for marijuana. He took the drug test and started working three days later. Later that same week, the clinic informed him that he tested positive for THC. The employer decided to suspend him, and later the board of directors fired him. Ross claimed that by denying him employment and failing to make a reasonable accommodation, RagingWire violated the FEHA.

The California Supreme Court stated that Ross did not have a cause of action to state a claim because the Compassionate Use Act did not give marijuana the same status as a legal prescription drug. The Court held that the FEHA does not require employers to accommodate the use of illegal drugs, including medical marijuana.

Washington
Roe v. Teletech Customer Care Mgmt. (Colorado) LLC (2011)17

Jane Roe suffered from debilitating migraine headaches that caused chronic pain, nausea, blurred vision, and sensitivity to light. After trying over-the-counter pain medication to no avail, Roe was prescribed medical marijuana to deal with the pain. Teletech offered Roe a full-time job, contingent on a drug screen. She informed Teletech of her authorization to use medical marijuana. After testing positive for THC, Roe was let go because the company did not make an exception for medical marijuana. Roe then filed a wrongful termination claim under the Washington State Medical Use of Marijuana Act (MUMA).

The Washington Supreme Court found that MUMA clearly provided an affirmative defense against criminal prosecution for qualified patients. However, it held the Washington State Medical Use of Marijuana Act did not provide for a private cause of action for discharge.

Michigan
Casias v. Wal-Mart Stores, Inc. (2012)18

Plaintiff, an employee of Wal-Mart, was diagnosed with sinus cancer and an inoperable brain tumor at the age of 17. After experiencing ongoing pain in his head and neck, he was prescribed medical marijuana by his oncologist. He was then issued a registry card by Michigan Department of Community Health. The registry card protected him from certain state law violations and disciplinary actions such as termination. After failing a drug test, he unsuccessfully tried to explain his positive results by showing the registry card.

Under Michigan’s Medical Marihuana Act, a qualifying patient “shall not be subject… to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau.”19 The 6th Circuit had to decide whether “business” stood alone as its own term or if it modified “licensing board or bureau.”

The 6th Circuit upheld the district court’s determination that “business” modified “licensing board or bureau.” This meant that Michigan’s Medical Marihuana Act did not apply to private employers and thus, the court upheld the defendant’s motion to dismiss for failure to state a claim.

What’s Next for Employers?

While it remains unclear how Minnesota courts will treat medical marijuana in the workplace, employers should make sure their drug and alcohol testing policy (along with its procedures and practices) are up to date with the current requirements. Employers also should review and revise other polices to make sure they are in compliance. Human resource departments should become familiar with the new law.


RICHARD SHARP is a third-year student at the University of Minnesota Law School. Mr. Sharp is currently a law clerk at Seaton, Peters & Revnew. The firm focuses on employer-side labor and employment issues. 


Notes

1 http://www.health.state.mn.us/topics/cannabis/about/stats.html 

2 Minn. Stat. §§152.22-152.37

3 Minn. Stat. §152.22

4 “Health care practitioner” means a Minnesota licensed doctor of medicine, a Minnesota licensed physician assistant acting within the scope of authorized practice, or a Minnesota licensed advanced practice registered nurse who has the primary responsibility for the care and treatment of the qualifying medical condition of a person diagnosed with a qualifying medical condition. Id.

5 Minn. Stat. §152.22

6 Minn. Stat. §152.27

7 Minn. Stat. §152.32

8 Minn. Stat. §§181.950 – 181.957

9 Minn. Stat. §363A.01

10 Minn. Stat. §181.938

11 125 S.Ct. 2195 (2005).

12 42 U.S.C. §12101

13 42 U.S.C. §1211

14 49 CFR Part 40, at 40.151(e)

15 350 P.3d 849 (Colo. 2015).

16 174 P.3d 200 (Cal. 2008).

17 257 P.3d 586 (Wash. 2011).

18 695F.3d 428 (6th Cir. 2012).

19 MCL 333.26424(a)

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