Minnesota recently became the 22nd state to legalize medical
marijuana use and, as part of the new law, to enact new potential employment
protections for registered users of medical marijuana. Minnesota’s new
marijuana law has already gone into effect, but distribution of marijuana for
medical purposes is not expected until July 1, 2015. Employers should
use this extra time to familiarize themselves with Minnesota’s new law and its
potential implications. While the new Minnesota law purports to impose
some new employment law obligations on employers, it also raises many
unanswered questions. Because marijuana
use is still illegal criminal activity under federal law, it is currently
unclear if Minnesota courts will strictly enforce the new state law against
employers or whether the federal law criminalizing all marijuana use will trump the new state law.
Limited Protection for
Medical Marijuana Use
By way of background, Minnesota’s new medical marijuana law has
been described as one of the narrowest and strictest medical marijuana laws in
the country. The law requires authorized
medical marijuana users to register with the state and only permits the use of marijuana
delivered in liquid, pill, or vaporized form. The law does not protect or authorize the smoking of marijuana
cigarettes. Additionally, medical
use of marijuana is only authorized for nine specified medical conditions.
Employee Protections Under the New Law
Historically, it has been lawful for Minnesota employers to
make adverse decisions about a job applicant or employee based on their proven
use of marijuana so long as any adverse decisions were made in accordance with
Minnesota’s drug and alcohol testing law. This is because marijuana has been, until now, illegal under both
federal and Minnesota law.
Now, the future is suddenly less clear. While marijuana is still illegal under
federal law, Minnesota’s drug testing law for applicants and employees defines
illegal drugs by pointing to Minnesota – not federal - law. In addition, Minnesota’s new medical marijuana
law purports to prohibit an employer from discriminating against or otherwise
penalizing a person in connection with hiring or employment based on: (1) the
person's status as a patient enrolled in the medical marijuana registry
program; or (2) a registered patient's positive drug test for marijuana.
There are a few important exceptions to this prohibition on
discrimination, but these exceptions do not clearly indicate how the new state
law interacts with the federal criminal law banning all marijuana use:
First, an employer can penalize a registry
patient for a positive marijuana drug test if the patient used, possessed, or
was impaired by medical cannabis on the premises of the place of employment or
during the hours of employment. Because marijuana can stay in someone’s
system for some time after use, however, it may be difficult for an employer
to establish whether an employee used medical marijuana or was impaired at the
office or during working hours.
Second, the new law permits adverse action against
a patient on the state registry if the failure to act "would violate
federal law or regulations or cause an employer to lose a monetary or
licensing-related benefit under federal law or regulations."
Impact on Other Laws
In addition to the newly enacted protections discussed above,
the new marijuana law could also impact other employment law obligations. Minnesota has a lawful consumable products
(LCP) statute that prohibits an employer from taking adverse action against a
job applicant or employee for consuming lawful products outside of work, such
as alcohol or tobacco. It is now unclear whether medical marijuana is a
lawful consumable product given that the product is lawful under state, but not
federal, law.
In addition, an employer has not historically had an
obligation to accommodate marijuana use as a possible disability under the Americans
with Disabilities Act (“ADA”), because current illegal drug use is not protected
by the ADA. Apart from the ADA, Minnesota
has its own employment discrimination law – the Minnesota Human Rights Act –
that requires accommodations for covered disabilities. While an employer is unlikely to have to
tolerate marijuana use or impairment at work, the new medical marijuana law may
require employers to have to revisit their accommodation obligations under
state law where medical marijuana use occurs outside the workplace and outside
of working hours.
Uncertainty in Light
of Federal Law
As medical marijuana begins to be distributed in the state,
employers should stay tuned to see how the courts interpret Minnesota’s new
medical marijuana law — especially in light of the continued federal prohibition
on marijuana use.
Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn’t only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year. And, for the curious, links can be found below to articles discussing the predicted features of the new iPhone 6 and “iTime” smartwatch. Both products are expected to launch this Fall.
