Minnesota Medical Marijuana Law Will Cloud Employer Drug-Free Workplace Efforts

On May 29, 2014, Minnesota Governor Mark Dayton signed into law legislation making Minnesota the 23rd jurisdiction to adopt a law authorizing the use of medical marijuana.1 The new Minnesota medical marijuana law (MML) promises to cloud and add complexity to administration of Minnesota employers' drug-free workplace programs and compliance with and rights under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).2

Does a Minnesota employer have to accommodate an employee with a verified marijuana positive test result because that employee consumed marijuana in accordance with the MML? The MML's terms suggest that the answer may be "yes," at least in some circumstances. While the supreme courts in four states and one federal appeals court have answered "no" to that question, those states' medical marijuana laws do not include employee protections like those provided in the MML.

No Federal Law Protection

Marijuana is designated a Schedule I (illegal) controlled substance under the federal Controlled Substance Act (CSA).3 Many years ago, the U.S. Supreme Court settled any doubt about whether individuals could lawfully grow or use marijuana for medicinal purposes despite that designation, ruling that Congress has the authority to make such uses unlawful and that the states cannot legalize what Congress had made unlawful.4 Given marijuana's illegal status at the federal level, employers have no duty to accommodate its use under the Americans with Disabilities Act.5 Additionally, the U.S. Department of Transportation and other federally mandated drug-free workplace programs have steadfastly rejected medicinal marijuana use as a basis to report a positive marijuana test result as excused or "negative" on a federally mandated test.6 Thus, there is no general protection under federal law for marijuana consumption. The MML is thus directly contrary to the federal CSA, which defines and criminalizes marijuana as including "all parts of the plant Cannabis . . . resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin."

Historically, Minnesota has Authorized Employment Action on the Basis of a Verified Positive Marijuana Test Result

Minnesota law presently permits employers to take adverse employment action on the basis of a verified positive marijuana test result, provided the employer is in compliance with the detailed requirements of the DATWA. Significantly, however, DATWA defines "drug" as "a controlled substance as defined in" the Minnesota Controlled Substances Act (MN-CSA).7 MN-CSA, like the federal CSA, designates marijuana ("all parts of the plant . . . Cannabis"8) as a controlled substance, the unlawful use of which is a crime under state law.9 The MML now amends the MN-CSA to decriminalize certain use of "medical cannabis" ("any species of the genus cannabis plant"), notwithstanding that the MN-CSA continues to criminalize other marijuana use.

General MML Provisions

The MML generally provides state criminal and civil protections to patients who enroll in a state registry program who may use or possess marijuana, and registered caregivers who possess marijuana.10 Registry participation requires certification by a health care practitioner11 that a patient has been...