Minnesota employers should review policies ahead of medical marijuana rollout

Now that medical marijuana is legal in Minnesota and disbursement is set to begin July 1, employers should review their policies regarding such workplace procedures as drug testing and the Americans With Disabilities Act to ensure they protect the business, as well as the employee.

Minnesota's law authorizes the use of medical marijuana for patients suffering from several medical conditions including glaucoma, HIV/AIDS, certain cancers, seizure disorders, Crohn's disease and illnesses causing severe and persistent muscle spasms. Individuals eligible for the medication are required to enroll in a statewide registry.

Given that only a few states have legalized medical marijuana use and that marijuana remains illegal under federal law, laws governing employee policies are evolving. Here are a few guidelines to consider when reviewing your organization's policies.

Marijuana law and the ADA

The ADA and a companion state disability law currently protect employees from discrimination due to their qualifying disability and require an employer to provide qualified individuals with reasonable workplace accommodations that allow a disabled employee to perform his or her job. Reasonable accommodations may include modifying work hours, making changes to the work setting, or permitting the use of certain prescribed medication, equipment or other physical aids. Generally, reasonable accommodation should be provided to qualified individuals unless doing so would create an undue hardship.

However, the ADA specifically excludes individuals engaging in "illegal" drug use from the definition of a qualified individual. While marijuana is unlawful under the federal Controlled Substances Act, the ADA definition states illegal drug use does "not include the use of a drug taken under supervision by a licensed health care professional …" — exactly what state medical marijuana laws permit.

Federal courts that have confronted this issue have found the ADA's definition of illegal drugs includes marijuana. As long as marijuana remains illegal under federal law, the ADA does not require an employer to accommodate its use.

Look beyond ADA

While federal and state disability discrimination laws may not require accommodations for marijuana use, employers should not ignore the potential impact of Minnesota's marijuana law on current policies. The new law includes separate language that prohibits discrimination against individuals authorized to use medical marijuana.

The law specifically prohibits discrimination in employment for those participating in the medical marijuana registry. In general, an employer may not discriminate against a person at any employment stage based on the person's status as a patient enrolled in the registry program or a patient's positive drug test for cannabis components 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. Employers should expect employees to seek protection under this language.

The state anti-discrimination language also creates a Catch-22 because while an employee may not have a claim for discrimination based on a disability under the ADA in Minnesota, he or she may have a claim for discrimination based on the state's laws governing medical marijuana use.

Next steps for employers

While case law is evolving, Minnesota employers should take time to review and perhaps revise workplace drug policies and other relevant contracts.

First, if employing someone using marijuana at your company would cause undue hardship including the loss of monetary or licensing benefits from the government, the Minnesota law allows employers to terminate or refuse to hire people enrolled in the registry program or who have positive drug tests.

Second, drug tests do not need to be eliminated or ignored. However, positive tests for marijuana will have to be addressed on a case-by-case basis. While the law does not require employers to permit an employee to be under the influence of marijuana while at work, it is possible the medication will appear in a drug screen without resulting in on-the-job impairment. If an employee tests positive for marijuana and can show they are a registered medical marijuana patient, job termination or other adverse actions will generally be prohibited.

Also, given that medical marijuana is a known treatment for several disabling conditions, a drug policy that screens out disabled persons could be problematic. Both the ADA and Minnesota law consider the use of certain "qualification standards, employment tests or other selection criteria" that screen out disabled persons as discriminatory. Similarly, as prescribed marijuana use increases, a blanket policy denying employment to those testing positive for marijuana will tend to screen out people with qualifying disabilities. An employer may still administer the drug test, but must treat positive results on a case-by-case basis and permit an employee to provide proof of registration as a medical marijuana patient.