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New Minnesota Medical Cannabis Law Protects Employees against Discrimination for Medical Cannabis Use

Minnesota’s new Medical Cannabis Act, signed into law on May 29, 2014, narrows the kind medical cannabis permitted, as compared to many other state laws, but may offer considerable protections to applicants and employees in the workplace. The Act became effective upon enactment, but it will take time for a system to be created to allow the use of medical cannabis.

The law does not cover marijuana that can be smoked. It defines “medical cannabis” as any species of the genus cannabis plant that is “delivered in the form of” liquid, including but not limited to oil; pill; vaporized delivery which does not require the use of dried leaves or plant form; or any other method, excluding smoking, approved by the Minnesota Commissioner of Health. A person using a marijuana cigarette is not protected by this law.

Qualifying patients must have a qualified medical condition from a list limited to the following: cancer, if the underlying condition or treatment produces severe or chronic pain, nausea, cachexia or severe wasting; glaucoma; HIV; Tourette’s; amyotrophic lateral sclerosis; seizures, including those characteristic of epilepsy; severe and persistent muscle spasms, including those characteristic of multiple sclerosis; Crohn’s disease; terminal illness, with a probable life expectancy of under one year, if the illness or treatment produces severe or chronic pain, nausea, cachexia or severe wasting. The Commissioner also may approve other medical conditions or treatments.

Employment Protections

The Act includes specific employment protections for qualified patients. It states that “an employer may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person,” if the discrimination is based upon the person’s status as a qualified patient or a qualified patient’s positive drug test for cannabis components or metabolites, “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.” This protection has an exception if the failure to discriminate “would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations[.]” Of course, if an employee “used, possessed, or was impaired” by marijuana on the job, under many employer substance abuse policies, drug testing would be unnecessary prior to the imposition of discipline.

The consequences of the law for Minnesota employers seeking to maintain a drug-free workplace can be onerous. Arguably, an applicant who is a qualified patient could not be rejected for testing positive for marijuana, even if he or she was applying to work in a safety-sensitive position (other than as a driver of a commercial motor vehicle, pilot or other position regulated by federal drug testing law). Solace for employers may be found in the narrow restrictions on the population that can use medical cannabis, and the means by which the drug may be administered. The total number of patients, especially those who are not completely disabled from working, may remain low for the time being. In fact, some patient advocates are refusing to participate or become enrolled because the Act does not allow them to smoke marijuana leaf, although it is unlikely that an employer could distinguish a drug test result of a qualified patient who does smoke from one who uses oil or vapor.

DATWA

Drug testing in Minnesota is currently governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), which has strict requirements for testing, including the requirement of a compliant written policy and a prohibition on termination of employees who test positive for the first time unless they refuse or fail to attend and complete treatment. The Medical Cannabis Act does not directly amend DATWA, but by de-criminalizing marijuana for qualified individuals under the criminal statutes upon which DATWA is built, it may limit the reach of the drug testing statute with regard to qualified patients under the Act. Employers who drug test in Minnesota should take the opportunity to review and revise their policies to ensure compliance.

Lawful Consumable Products

Minnesota also has a “lawful consumable products” act which prohibits employers from taking an adverse employment action against an employee who consumes lawful products on his or her own time. It remains to be seen if or how the Medical Cannabis Act will impact that statute, but the explicit protections in the new Act probably make any attempt to invoke the lawful consumable products act unnecessary or redundant, and possibly vulnerable to an argument that it has been preempted by the new Act insofar as medical marijuana is concerned.

Minnesota was the 22nd state (plus the District of Columbia) to approve medical marijuana use in some form. Other states with some form of employee protection for use of medical marijuana include Connecticut, Illinois and Nevada.

For additional information and assistance in complying with the Act’s requirements, please contact the Jackson Lewis attorney with whom you regularly work.

Employers and Delta – 8 THC

Marijuana in the workplace is an evolving target that is difficult for employers to navigate, as seen here in a previous post. A zero tolerance policy is perfectly acceptable, and required for USDOT safety positions, etc., but the landscape is ever shifting.

Enter Hemp, which the 2018 Farm Bill legalized. Notwithstanding the DEA’s reluctance to give up turf, hemp is legal from coast to coast in states with a system, and highly regulated from state to state. To be clear, hemp is not marijuana, although both are cannabis. The basic difference is that marijuana is hybridized, grown, and processed for varying psychoactive effects (Delta-9 THC ), while hemp is hybridized, grown and processed for seed, fiber, and oil (think CBD sold at Walgreens) that does not have a psychoactive effect. That is, hemp ingestion does not result in the “high.”

It is also true that the cannabinoid oil contains over 100 separate compounds that are only now beginning to be isolated and explored. These include the Delta-9 THC that results in the high from marijuana. However, given the 2018 Farm Bill, as long as the oil comes from legally produced hemp with a traditional Delta-9 THC content of less than .03%, it is legal. Therefore, anything subsequently derived from that legal hemp oil is legal. And presto, like magic we now have the proliferation of Delta-8 THC.

Employers are predictably confused and asking many questions. Delta-8 THC, unlike its much more powerful cousin Delta-9 THC, is currently a legal substance that is being advertised as the “avoid the dispensary” option to traditional marijuana products. Reports are that Delta-8 THC does have a psychoactive impact, albeit a far weaker impact. See Dante Jordan’s self-evaluation for Leafly here.

Employers can obviously ban workers from being drunk and high on the job. They can also ban the use of marijuana based Delta-9 THC altogether, because it is federally illegal and a Tier 1 controlled substance. Can they also completely ban the use of a federally legal Delta-8 THC product used by workers outside of work? Can they completely ban the use of alcohol outside of work? And it gets trickier because the employer can test for alcohol to see if an employee is impaired in real time. This is not the case with THC of any kind. With THC, the employer must rely on the subjective observations of a co-worker or supervisor, and testing that can only determine whether a person has used a THC product in the past month or so.

When considering adverse employment actions based upon subjective observations and no empirical proof, employers predictable become nervous about potential lawsuits, grievances, low morale and disgruntled workers. And remember, Delta-8 THC is one of over 100 compounds. Some are likely throwaways, but some will hit the market.

Employers need to plan and think through hemp and marijuana products in the workplace. The ability to hire and retain in non-safety positions is causing some employers to take an approach akin to alcohol. Some are taking a hard line. Due to the fact that over two-thirds of Americans have access to some form of legal marijuana, and almost all have access to hemp and Delta-8 products, what employers cannot do is ignore the issues.