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Medical Marijuana at Work

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With medical marijuana now legal in Minnesota, a number of issues are likely to arise for employers and employees around the state.

The program, the 20th in the country, was authorized by legislation enacted in 2013, and went into effect on July 1, 2015.  It got off to a slow start but soon picked up steam, with about 192 individuals certified by the Office of Medical Canabis of the Department of Health as of the launch date, far fewer than the 232 authorized dispensers from the two established dispensaries as of that date:  one in downtown Minneapolis and another in Eagan, with at least six more facilities scheduled to open later this summer under Minn. Stat. § 152.22-37.  To be eligible for certification, an individual must have one of nine designated diseases or a terminal condition with less than one year life expectancy.

Colorado Case

A setback for medical marijuana users recently occurred in a highly-anticipated case decided by the Supreme Court in Colorado, where marijuana is not only medically authorized but allowed for recreational purposes as well.

In Coats v. Dish Network, LLC, No. 13SC394, 2015 WL 3744265 (Colo. June 15, 2015), the Court upheld the discharge of a customer representative employee, a quadriplegic, who used marijuana for treatment of medical afflictions and pain.

The employee sued under a state law in Colorado that prohibits disciplining of an employee due to use of a “lawful” product.  But the Colorado court, following the precedent of a number of other states, held that the proscription did not apply because, despite the state law, the drug remains illegal under the Federal Controlled Substance Act. 

Similar results have been reached by courts in California, Oregon, and Michigan, among other jurisdictions.

Minnesota Matters

How will these matters be addressed in Minnesota? 

This state, like Colorado, has a law barring employers from refusing to hire a job applicant or firing an employee due to use of a “lawful” product, such as food, beverages, including alcohol, or tobacco.  Known as the Consumable Products Act (CPA), Minn. Stat. § 181.938, it is similar but somewhat broader than laws in about 30 other jurisdictions, including neighboring Wisconsin.  The Minnesota law excludes use of a substance while at work or on duty as well as reasonably related to job duties, such as safety sensitive positions.

The Federal prohibition may overcome the CPA if a Court were to follow the cases decided in Colorado and other jurisdictions.  One compelling argument could be made to deviate from those decisions to bolster the CPA, which has been subject to sparse interpretations by the Courts in this state.

But other laws might come into play, as well.  One is the Drug & Alcohol Testing in the Workplace Act (DATWA), Minn. Stat.  § 181.950.  It proscribes certain protocols for drug testing of employees and bars discharge in most communities for a first-time test failure.

The Minnesota Human Rights Act, Minn. Stat. § 363.01, et seq., as well as the Federal Americans with Disabilities Act (ADA), also furnish rights and remedies to certified users of medical marijuana.  Under these laws, employers are restricted for punishing an employee due to disability and not provide them with a “reasonable accommodation” to be developed as part of an “interactive” process. 

Employers should be aware of these measures and be wary of refusing to hire or, more importantly, firing an employee due to use of medical marijuana.  This is particularly so if they re aware that the individuals are lawfully-certified to use the substance.

For employees, disclosure and transparency is generally recommended.  Employers should usually notify employers of their registered status and avoid using the substance while at work or on duty or working while impaired.

It will be interesting to see how the law develops in Minnesota, as the legislation allowing medical marijuana proceeds in this state.