What are employee rights to medical marijuana use and what does the new law mean for compliance under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA)?
Minnesota’s new law is a breakthrough for advocates and could improve opportunities for treatment, pain management, and research. It may however create issues for employers and employees in “drug-free” workplaces. What are employee rights to medical marijuana use and what does the new law mean for compliance under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA)?
Under federal law, marijuana is still considered a controlled substance. The Supreme Court has held that states cannot legalize what Congress has already declared unlawful. Arguably, employers do not have to comply with state medical marijuana laws as they conflict with federal marijuana laws; however, the Medical Marijuana Law gives additional protections to employees. Most importantly, the MML amends the Minnesota Controlled Substances Act to decriminalize the use of medical cannabis.
Under the MML, patients and registered care givers in the medical marijuana use program are protected against criminal and civil liabilities. This gives registered patients and caregivers the ability to possess marijuana if they are certified by a health care practitioner and diagnosed with one of the qualifying conditions, including cancer, HIV/AIDS, seizures, Chrohn’s disease, terminal illness, or another any other medical condition that is approved by the commissioner of health. The drug must be in the form of liquid, pills or vaporized delivery and can only be distributed through registered in-state manufacturers.
Does a Minnesota employer have to accommodate an employee who tests positive for marijuana in accordance with the Medical Marijuana Law? Under the requirements of DATWA, Minnesota employers can take adverse employment action based on positive test results if they follow the specific requirements of DATWA. Unlike other legalization laws, the Minnesota Medical Marijuana law includes employee protections that go beyond any laws adopted by other states, directly prohibiting employers from discriminating against patients who are registered in the MML program. Employers are prohibited from taking adverse action, including failure to hire or termination if the decision is based on the status of a patient on the state registry, or a patient’s positive drug test.
Effectively, any patient who is subject to drug testing pursuant to DATWA can also present verification of enrollment in MML registry. Proof of registry should insulate patients from adverse employee action or failure to hire based on a positive drug test or participation in the program. One limitation is that an employer can take adverse action upon a demonstration that the employee is impaired or in possession while at work.
While the legal ramifications of this law remain to be seen, employees should remember that they have legal protections under the Medical Marijuana Law. If you have questions about your rights as a patient or employee, we want to hear from you. Our attorneys at Wanta Thome handle complex employment law claims and are dedicated to protecting employee rights. For more information about DATWA or the rights of employees under Minnesota’s medical marijuana law, please call 612-252-3570.