Pubdate: Sun, 12 Apr 2015
Source: Minneapolis Star-Tribune (MN)
Copyright: 2015 Star Tribune
Author: Laurie Jirak


Now that medical marijuana is legal in Minnesota and disbursement is 
set to begin July 1, employers should review their policies regarding 
such workplace procedures as drug testing and the Americans With 
Disabilities Act to ensure they protect the business, as well as the employee.

Minnesota's law authorizes the use of medical marijuana for patients 
suffering from several medical conditions including glaucoma, 
HIV/AIDS, certain cancers, seizure disorders, Crohn's disease and 
illnesses causing severe and persistent muscle spasms. Individuals 
eligible for the medication are required to enroll in a statewide registry.

Given that only a few states have legalized medical marijuana use and 
that marijuana remains illegal under federal law, laws governing 
employee policies are evolving. Here are a few guidelines to consider 
when reviewing your organization's policies.

Marijuana law and the ADA

The ADA and a companion state disability law currently protect 
employees from discrimination due to their qualifying disability and 
require an employer to provide qualified individuals with reasonable 
workplace accommodations that allow a disabled employee to perform 
his or her job. Reasonable accommodations may include modifying work 
hours, making changes to the work setting, or permitting the use of 
certain prescribed medication, equipment or other physical aids. 
Generally, reasonable accommodation should be provided to qualified 
individuals unless doing so would create an undue hardship.

However, the ADA specifically excludes individuals engaging in 
"illegal" drug use from the definition of a qualified individual. 
While marijuana is unlawful under the federal Controlled Substances 
Act, the ADA definition states illegal drug use does "not include the 
use of a drug taken under supervision by a licensed health care 
professional aE&" -- exactly what state medical marijuana laws permit.

Federal courts that have confronted this issue have found the ADA's 
definition of illegal drugs includes marijuana. As long as marijuana 
remains illegal under federal law, the ADA does not require an 
employer to accommodate its use.

Look beyond ADA

While federal and state disability discrimination laws may not 
require accommodations for marijuana use, employers should not ignore 
the potential impact of Minnesota's marijuana law on current 
policies. The new law includes separate language that prohibits 
discrimination against individuals authorized to use medical marijuana.

The law specifically prohibits discrimination in employment for those 
participating in the medical marijuana registry. In general, an 
employer may not discriminate against a person at any employment 
stage based on the person's status as a patient enrolled in the 
registry program or a patient's positive drug test for cannabis 
components 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. Employers should expect employees to seek 
protection under this language.

The state anti-discrimination language also creates a Catch-22 
because while an employee may not have a claim for discrimination 
based on a disability under the ADA in Minnesota, he or she may have 
a claim for discrimination based on the state's laws governing 
medical marijuana use.

Next steps for employers

While case law is evolving, Minnesota employers should take time to 
review and perhaps revise workplace drug policies and other relevant contracts.

First, if employing someone using marijuana at your company would 
cause undue hardship including the loss of monetary or licensing 
benefits from the government, the Minnesota law allows employers to 
terminate or refuse to hire people enrolled in the registry program 
or who have positive drug tests.

Second, drug tests do not need to be eliminated or ignored. However, 
positive tests for marijuana will have to be addressed on a 
case-by-case basis. While the law does not require employers to 
permit an employee to be under the influence of marijuana while at 
work, it is possible the medication will appear in a drug screen 
without resulting in on-the-job impairment. If an employee tests 
positive for marijuana and can show they are a registered medical 
marijuana patient, job termination or other adverse actions will 
generally be prohibited.

Also, given that medical marijuana is a known treatment for several 
disabling conditions, a drug policy that screens out disabled persons 
could be problematic. Both the ADA and Minnesota law consider the use 
of certain "qualification standards, employment tests or other 
selection criteria" that screen out disabled persons as 
discriminatory. Similarly, as prescribed marijuana use increases, a 
blanket policy denying employment to those testing positive for 
marijuana will tend to screen out people with qualifying 
disabilities. An employer may still administer the drug test, but 
must treat positive results on a case-by-case basis and permit an 
employee to provide proof of registration as a medical marijuana patient.
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MAP posted-by: Jay Bergstrom