Jacobson Presents on Medical Marijuana in the Minnesota Workplace

Swenson Lervick attorney Tom Jacobson was selected by Minnesota Continuing Legal Education to give a presentation on the workplace impacts of Minnesota’s legalization of medical marijuana at the 2015 Public Sector Labor and Employment Law Update held February 23  in Minneapolis. According to Jacobson, 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, Jacobson says, 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. 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 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 Tom at [email protected].