
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."
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.
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