Marijuana in the Workplace

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Marijuana in the WorkplaceW h a t ’ s R e q u i r e d a n d H o w t o A d v i s e ?


Today’s AgendaOverview of Minnesota’ Medical Cannabis Law01

Rules for Accommodating Medical Marijuana

Drug Testing for Medical Marijuana

Workplace Policies Addressing Medical Marijuana

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Employment Protections for Medical Marijuana Users

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The Basics• Minnesota’s Medical Cannabis law allows for the use and

possession of marijuana for medical purposes.

o Minnesota’s Medical Cannabis law does not allow smoking. It only allows the use of pills, oils, or vaporizing of a cannabis compound through a device similar to an e-cigarette.

o But, testing vendors are not generally equipped to distinguish between positive results caused by medicinal marijuana use versus smoking marijuana.

A n O v e r v i e w o f t h e L a w


Qualifying ConditionsA n O v e r v i e w o f t h e L a w

Marijuana can only be used for the following qualifying conditions:

o Cancer

o Glaucoma

o HIV/AIDS

o Tourette’s syndrome

o Epilepsy

o Amytophic Lateral Sclerosis (ALS)

o Crohn’s disease

o “Severe and persistent muscle spasms”

o Terminal illness with a probable life expectancy of under a year)



• Healthcare practitioners can certify patients suffering from intractable pain beginning in July, 2016 and qualifying pain patients can purchase medical marijuana in August, 2016.

• On December 2, 2015, Minnesota’s Health Commissioner added intractable pain to the list of qualifying conditions.

o Intractable pain is defined as “a condition in which the case of the pain cannot be removed or otherwise treated with the consent of the patient and in which, in the generally accepted course of medical practice, no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.”

Qualifying Conditions



• Pain patients make up the bulk of the patient base in other states.

• Experts believe that the addition of intractable pain will add tens of thousands of new patients into Minnesota’s program.

• Leafline (one of the two medical marijuana operators in Minnesota) estimates that allowing pain patients access to the drug will increase business by approximately 100 patients a month.

• More Minnesota employers may begin to see medical marijuana issues in their workplaces.

Why Intractable Pain Changes Everything?


A n O v e r v i e w o f t h e L a wWhy Intractable Pain Changes Everything?Intractable Pain is the single biggest reason

Minnesota patients are certified to use medical marijuana.


A n O v e r v i e w o f t h e L a wWhat Have We Learned?• Minnesota’s first medical marijuana dispensary opened on July 1, 2015.

• Few patients have enrolled for medical marijuana.

o Only 2,806 patients have enrolled with the Department of Health’s Office of Medical Cannabis, but the small patient count is increasing. The number of patients increased 1,218 from

June 30, 2016 to September 30, 2016, primarily due to the addition of Intractable Pain as a qualifying condition.

o Experts estimate that 300,000 Minnesotans qualify for medical marijuana, but they do not know about medical marijuana, cannot afford it, or are not interested in it.


A n O v e r v i e w o f t h e L a wWhat Have We Learned? Medical marijuana is expensive in Minnesota.

o The cost of a month’s supply of medical marijuana ranges from less than $200 to well over $1000.

o Insurance does not cover the cost of medical marijuana.

o Some patients skip doses, trying to stretch their supply longer to save money.

o Others drop out of the program entirely.


A n O v e r v i e w o f t h e L a wWhat Have We Learned?• Many healthcare practitioners are not

comfortable certifying marijuana use and worry about:

o Referring patients to a drug that is still illegal at the federal level.

o Referring patients to a drug that has not gone through years of clinical trials in this country.

o Addiction and adding marijuana to the mix when the medical community is already dealing with prescription painkiller abuse.

• There are 696 healthcare practitioners who can certify a patient’s condition as qualifying for medical marijuana.






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Employment ProtectionsMinnesota’s Medical Cannabis law prohibits employers from discriminating against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon either of the following:

• The person’s status as a patient enrolled in the registry program.

• The 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 hours of employment.



What about the Minnesota• The MLCPA provides that private employers may not refuse to hire a job

applicant or discipline an employee because they have engaged in the use of lawful consumable products, if use takes place off the employer’s premises and during nonworking hours.

• Since medical marijuana is lawful under state law, employers could be prohibited from adverse action against employees who engaged in such activity.

• However, as discussed below in Coats. v. Dish Network, the Minnesota courts will have to decide whether the activity must be lawful under both federal and state law.

Lawful Consumable Products Act (MLCPA)?


• Brandon Coats worked for Dish Network in their call center.

• He was licensed by the state of Colorado to use medical marijuana and he used marijuana within the limits of his license.

• Dish Network terminated Mr. Coats after he tested positive for marijuana during a random drug test.

• Mr. Coats sued Dish Network alleging his termination violated the Lawful Activities Statute.

• The Court held that Mr. Coats use of marijuana was not lawful because marijuana remains illegal under federal law.

What about the MinnesotaLawful Consumable Products Act (MLCPA)?


• Nothing in Minnesota’s Medical Cannabis law allows an employee to use, possess, or be impaired by medical cannabis while on duty.

o In fact, all use of medical cannabis must occur during non-working hours and in such a manner that does not result in impairment at a future time on the job.

• So, employers should consider including a provision in their policy that prohibits the use of, possession of, and impairment by marijuana on company premises or during work hours.

Employment ProtectionsU s e o f M a r i j u a n a a t W o r k


The Conflict with Federal Law

• Despite Minnesota’s Medical Cannabis law, use of any form of marijuana remains illegal under federal law.

o However, the Department of Justice has said that it does not view enforcement of federal drug statutes against cannabis users to be a priority in states that have enacted a stringent regulatory framework for cannabis use.

o Minnesota’s regulatory framework for cannabis use is one of the strongest in the nation.


• It is important to note that federal directives can change at any time.

• The current law of the land is Gonzalez v. Raich in which the Supreme Court said that Congress has the authority to make medicinal use of marijuana unlawful and the states cannot legalize what Congress has made unlawful.

o In other words, if the Department of Justice wanted to sue to invalidate these laws, it could do so and it would win.



• President-Elect Trump told the Washington Post, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state. Marijuana is such a big thing. I think medical should happen– right? Don’t we agree? I think so. And then I really believe we should leave it up to the states.”

• He has also expressed support for medical marijuana, telling Bill O’Reilly in February that he’s, “in favor of medical marijuana 100%.”



The Drug Free Workplaces Act

D o N o t F o r g e t a b o u t I t

• The Drug-Free Workplace Act applies to employers who receive a federal contract of at least $100K.

• Requires a good-faith effort to maintain a drug-free workplace.o Use or possession of marijuana is specifically prohibited by the

Act.

• State laws do not excuse companies subject to the Drug-Free Workplace Act.




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The Americans with Disabilities Act• The Americans with Disabilities Act requires employers to provide

reasonable accommodations to qualified individuals with a disability.

• As a general matter, medical marijuana alleviates the symptoms of people with disabilities, such as cancer, HIV/AIDS, glaucoma, multiple sclerosis, major depression, etc.

• The ADA does not require the accommodation of medical marijuana use.


• The Americans with Disabilities Act requires employers to provide reasonable accommodations to qualified individuals with a disability.

• As a general matter, medical marijuana alleviates the symptoms of people with disabilities, such as cancer, HIV/AIDS, glaucoma, multiple sclerosis, major depression, etc.

• The ADA does not require the accommodation of medical marijuana use.

• Bottom line: The ADA does not provide protection for illegal drug use and marijuana use is illegal under federal law.

The Americans with Disabilities Act


The Minnesota Human Rights Act

• The MHRA does not require employers to accommodate use of marijuana or impairment at work.

• It is unclear whether employers need to provide reasonable accommodation of possession of marijuana under the MHRA.

• Even if you do not have to accommodate medical marijuana use, you may have to accommodate the underlying condition for which the medical marijuana was recommended.o For example, you may have to grant an employee’s request to alter work

hours or go to a part-time schedule to accommodate marijuana use during off duty hours.

o For another example, you may have to grant requests for a leave of absence.


Best Practice Tip• Prudent employers will work with the employee to consider how to

accommodate off-premises, off-duty medical marijuana use.

• Train managers that they should seek advice before taking adverse action against employees simply for testing positive for marijuana.

R e a s o n a b l e A c c o m m o d a t i o n


What can I do if I learn thatmy employee uses medical marijuana


What is a disability-related inquiry?

• A question (or series of questions) that is likely to elicit information about a disability, such as:

o Asking an applicant whether s/he has (or ever had) a disability or how s/he became disabled

o Asking about an employee’s workers compensation history

o Asking whether an individual is currently taking prescription medication

o Asking an applicant a broad question about his/her impairment that is likely to elicit information about disability (e.g., Do you use marijuana?)

• Since Minnesota has legalized marijuana for medical use, asking about medical marijuana use in Minnesota may be a disability-related inquiry.


What is a medical examination?

• A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health.

o Blood and urine tests to determine the current illegal use of drugs is not a medical examination.

o But, blood and urine tests to determine the current legal use of drugs is a medical examination.

• Since Minnesota has legalized marijuana for medical use, drug testing an employee for marijuana may be a medical examination.


The framework for disability-related inquiriesAn employer’s ability to make disability-related inquiries or conduct medical examinations

is analyzed in three stages:

• Pre-Offer – all disability-related inquiries and medical examinations are prohibited, even if they are related to the job.

• Post-Offer – disability-related inquiries and medical examinations are allowed regardless of whether they are job-related, as long as the employer does so for all entering employees in the same job category.

• During Employment – an employer may make disability-related inquiries only if they are job related and consistent with business necessity.o You must have a reasonable belief based on objective evidence that (1) the

employee is unable to perform her job because of a medical condition or (2) the employee will pose a direct threat because of a medical condition.




You can ask Helen about it only if you have a reasonable belief based on objective evidence that (1) Helen is unable to perform her job because of a medical condition or (2) Helen will pose a direct threat because of a medical condition.



Best Practice Tip• Given Minnesota’s employment protections, it is a best practice not to

require applicants or employees to disclose their status on the registry.

• Do not take adverse action against, ask questions of, or drug test an employee simply because you learn that s/he uses medical marijuana.

D i s a b i l i t y I n q u i r i e s



02Employment Protections for Medical Marijuana Users



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Rules for Accommodating Medical Marijuana03


• Some employees – for example, those holding a commercial driver’s license – may be subject to drug testing under federal law.

• Those employees not subject to testing under federal law may only be tested pursuant to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).

o DATWA applies to all employers with one or more employee(s).

o Employers must follow DATWA, even if the applicant or employee is enrolled on the Medical Cannabis Registry.

In other words, DATWA does not require drug testing but, if you perform drug testing, you must comply with DATWA.

One of DATWA’s most basic requirements is that no drug testing can occur unless there is a written drug testing policy in place.

Drug Testing for Marijuana


The four most common methods of testing for marijuana are:

• Blood tests: Offers one of the best measures of whether a person used marijuana recently, but cannot indicate the level of impairment.

• Urine tests: Cannot show if the employee is “impaired” at the moment of testing, because of the time required between marijuana being ingested and the metabolites being eliminated in the urine.

• Hair tests: Cannot indicate impairment or tell if the marijuana was used in the previous few days, because marijuana residue does not appear in the hair until days after first use.

• Saliva tests: Newer, less proven technology that is supposed to detect recent use, i.e., from several hours to over a day.



The four most common testing methods of testing for marijuana are:

• Blood tests: Offers one of the best measures of whether a person used marijuana recently, but cannot indicate the level of impairment.

• Urine tests: Cannot show if the employee is “impaired” at the moment of testing, because of the time required between marijuana being ingested and the metabolites being eliminated in the urine.

• Hair tests: Cannot indicate impairment or tell if the marijuana was used in the previous few days, because marijuana residue does not appear in the hair until days after first use.

• Saliva tests: Newer, less proven technology that is supposed to detect recent use, i.e., from several hours to over a day.

Saliva testing is legally questionable for non-DOT testing in Minnesota, because a saliva test does not utilize the services of a certified laboratory. So really, Minnesota employers have three options for marijuana drug testing.



o Marijuana is immediately taken up by the fat cells in the body, where it is released slowly over time.

o That is why marijuana can be detected in the body for weeks and sometimes longer.

• Some states have instituted legal limits for THC blood levels (e.g., 5 nanograms or more per milliliter)

o However, both the National Highway Traffic Safety Administration and the National Institute on Drug Abuse have stated that marijuana impairment testing is unreliable.

o Experts advise, to even begin to determine the magnitude of impairment, behavioral criteria should be observed.

• Unlike with alcohol, it is difficult to determine if an employee is “impaired.” Drug Testing for Marijuana


• Prior to requesting a drug test from an employee, a best practice would be for employers to observe and document any behaviors that support a “reasonable suspicion” that the employee is impaired.

• Those behavioral observations may be needed to support the employer’s drug testing results and conclusion that the employee was impaired by marijuana at work.

Best Practice TipD r u g T e s t i n g


• Train your managers on how to spot marijuana impairment.

• Some side effects of using marijuana include:

o Dizzinesso Laughing for no reasono Red, bloodshot eyeso Forgetting things that just happened

Another Best Practice TipD r u g T e s t i n g


Presumption of Appropriateness• If an applicant or employee tests positive for marijuana, Minnesota’s

Medical Cannabis law allows them to provide proof of their enrollment in the registry as an explanation of the positive drug test.

o No other state expressly endorses medical marijuana use as an acceptable explanation for a positive workplace drug test.

• So, enrollment on the registry provides the employee with a presumption that they are using medical cannabis for appropriate purposes to relieve physical symptoms.


• The presumption can be rebutted by evidence that conduct related to use of medical marijuana was not for the purpose of treating or alleviating the patient’s qualifying medical condition or symptoms of the condition.

• Again, testing vendors are not generally equipped to distinguish between positive results caused by medicinal marijuana use versus street marijuana use.

Presumption of Appropriateness


How can I tell if marijuana was legally obtained?• An employer can ask an employee to show

the medical marijuana container.

• The medical marijuana container is the primary way to identify if marijuana was legally obtained.

• Anyone legally allowed to handle medical marijuana will have their name printed on the label.


The TakeawaysProving impairment is difficult01 Most available testing can only say that marijuana was used in the past, not whether the applicant or employee is currently impaired

Prior to requesting a drug test, observe and document any behaviors that support a “reasonable suspicion” that the employee is impaired.02Behavioral observations may be needed to support the drug test results.

If the employee tests positive, give the employee the opportunity to provide proof the marijuana use was pursuant to a valid medical certification.

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04 Realize that you must still follow Minnesota DATWA when drug testing for marijuana.



02Employment Protections for Medical Marijuana Users


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Rules for Accommodating Medical Marijuana03


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78%of employers do not

have a substance use policy that addresses

marijuana use

Medical Marijuana Workplace Policies


Best Practice Tip• Employers should specifically state in their substance use policy how

marijuana will be treated.

• Remind employees and applicants of your drug and alcohol policy to minimize confusion. o Employees and applicants may be confused and assume that employers are no

longer permitted to conduct drug testing, terminate employees, or refuse to hire potential employees based on a positive marijuana test.

W o r k p l a c e p o l i c i e s


• No Tolerance policy: Marijuana is a Schedule I drug under the federal Controlled Substances Act, and its use is prohibited.

• Safety Sensitive policy: Marijuana remains unacceptable for any safety-sensitive employee.o Regardless of the state, it is unacceptable for employees in safety-sensitive positions that

are subject to drug testing under the DOT’s regulations to use medical or recreational marijuana

o The states that provide job protections to medical marijuana users also have exceptions for when the employer would lose federal funding or a federal license.

• Relaxed policy: Employees cannot use, possess or be “impaired” by marijuana while at work.o You could take it a step further and set a limit such as 5 nanograms per milliliter or more

in the employee’s system.

T h e T h r e e A p p r o a c h e sMedical Marijuana Workplace Policies


73%of employers have a

no-tolerance policy

Medical Marijuana Workplace Policies


Practice PointerA no-tolerance policy is risky in Minnesota, unless the employer is subject to the Drug Free Workplaces Act, DOT regulations, or would lose federal funding or a federal license.

• Minnesota law requires organizations to adopt a policy to allow applicants or employees to explain a positive result on a drug test.

• Don’t forget about your state’s Lawful Activities law.



Some More Best Practice Tips


• Be very clear on what you will and will not tolerate

o For instance, if you have a “no tolerance” policy, you should define “illegal” to include all substances that are illegal under federal, state, or local laws.

o For another instance, if you have a “relaxed” policy, you should include a provision prohibiting the use of, possession of, and impairment by any illegal drugs on company premises or during work hours.

• Indicate that adverse action may be taken against violators as permitted by law.


The TakeawaysM e d i c a l M a r i j u a n a

• Marijuana remains an illegal drug under federal law.o Employers subject to the Drug Free Workplaces Act are still subject to the

Drug Free Workplaces Act.

• Minnesota’s Medical Cannabis law does not allow smoking. It only allows the use of pills, oils, or vaporizing.



• Minnesota’s Medical Cannabis Law has some of the strongest employment protections in the nation.

o Employers cannot discriminate because someone is enrolled on the registry or because someone tests positive for marijuana.

o Employees can provide proof of their enrollment in the registry to explain a positive marijuana test.

• Employers can still drug test for marijuana and discipline employees who possess or test positive for marijuana.

o Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) still applies.

o Remember, proving marijuana impairment via a drug test is difficult and you may need behavioral observations to support the drug test result.



• The Americans with Disabilities Act does not require the accommodation of people who use marijuana for medicinal purposes.

o However, Minnesota may require you to accommodate medical marijuana use off premises, during non-working hours.

o Regardless, you may have to accommodate the underlying medical condition.

• Workplace policies should be clear about how marijuana will be treated.

o Problems may be avoided if applicants and employees know your position.


QuestionsM e d i c a l M a r i j u a n a


W h a t ’ s R e q u i r e d a n d H o w t o A d v i s e ?Marijuana in the Workplace

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Marijuana in the Workplace