Can I Be Fired for Failing a Drug Test After Consuming Medical Cannabis?

Social views on marijuana use have changed markedly since President Nixon famously declared a “War on Drugs” early in his presidency. Even more so with respect to medicinal use, given its efficacy at treating chronic pain, PTSD and a variety of other medical conditions. Today, 36 states and 4 territories have in place laws authorizing the medical use of cannabis products. Despite this sea change, possession of even a small amount of marijuana remains a crime under federal law, punishable by up to one year in prison and a fine of $1,000. The federal Controlled Substances Act contains no exception for medically prescribed marijuana. This discrepancy creates a great deal of confusion in the workplace. Whether or not you may be fired after consuming medical cannabis depends on a variety of factors.

In what state do you live?

Minnesota and 16 other states allowing medical cannabis consumption prohibit employers from terminating employees who test positive on the job. Minn. Stat. § 152.32, subd. 3(c). The remaining 19 do not. In Minnesota, no employee enrolled in the Minnesota Medical Cannabis Registry program may be fired for testing positive for medical cannabis, subject to limited exceptions discussed below. Frequently, Minnesota employees wrongfully terminated for testing positive also will have legal claims under Minnesota’s extremely stringent drug testing law, the Drug and Alcohol Testing in the Workplace Act (“DATWA”), Minn. Stat. § 181.950 et seq. In addition to containing multiple notice requirements, DATWA permits drug tests only under very limited circumstances, including reasonable suspicion of impairment, random testing in “safety sensitive” positions or as part of a drug treatment program.

Are you impaired?

Minnesota’s medical cannabis law exempts participants in the state medical cannabis program who are impaired at the time of the testing, or who use or possess medical cannabis in the workplace. In other words, you can be fired for coming to work under the influence.

Were you tested under a federal drug testing law?

Under the Constitution’s preemption clause, federal law supersedes any conflicting state law. As a result, the Minnesota legislature included language exempting the job protections found in DATWA and Minnesota’s medical cannabis statute for individuals subject to testing under any federal drug testing law. Examples include interstate truck drivers, dock workers who load interstate trucks, pipeline workers, pilots and air traffic controllers.

Does your employer receive federal grants?

This is a trick question. The answer is it does not matter if the employer receives federal grants or has a federal contract. Minnesota’s medical cannabis law doesn’t apply where applying it would “cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.” Before receiving a federal grant or contract, all private businesses must agree to abide by the federal Drug-Free Workplace Act, 41 U.S.C. § 8101 et seq. (“DFWA”). However, many employers interpret this to mean—and therefore erroneously believe—they must terminate any employee who tests positive for a Schedule 1 substance such as marijuana. The DFWA only requires that employers prohibit employees from “engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance” in the workplace. As such, lawful treatment with medical cannabis in one’s home during non-working hours falls outside DFWA’s ambit.

Contact Our Minnesota Employment Attorneys

If you have any questions about your rights under Minnesota’s medical cannabis or drug testing laws, please contact the experienced employment lawyers at Wanta Thome PLC for a free initial consultation.