July 21, 2015
By Jeffrey A. Wieland
On July 1, 2015, medical marijuana became legal in Minnesota and its availability poses significant issues and risks to employers that this Briefing Paper will analyze. Thirty-four states and the District of Columbia have legalized medical marijuana. Four states and the District of Columbia have gone even further and legalized recreational use of marijuana. But irrespective of state laws, marijuana is still a Schedule I controlled substance, and possession of it is illegal under federal law.
Marijuana’s disparate status under state and federal law has resulted in litigation across the country, so the rules governing marijuana possession and use are unsettled. That uncertainty is worse in Minnesota because our medical marijuana statute contains an unusual employment anti-discrimination clause. Minnesota employers need to know the current state of the law and should make sure that their policies, procedures, and employee handbooks are updated to avoid liability under the new statute. This Briefing Paper will discuss the new medical marijuana statute, and some of the employment issues that may arise regarding marijuana that employers may need to address.
Minnesota’s medical marijuana statute permits persons diagnosed with certain qualifying medical conditions, such as cancer, glaucoma, AIDS, ALS, and Crohn’s disease, to become registered to possess and use marijuana produced by a registered manufacturer when prescribed by a health care practitioner. The statute exempts registered patients, caregivers, and manufacturers from prosecution under state law for use, possession or sale of medical marijuana within the registry system. The statute also states a rebuttable presumption that registered users are “engaged in the authorized use of medical cannabis.” This is important because a drug test will not distinguish between authorized use of medical marijuana and illegal recreational use of non-medicinal marijuana. The medical marijuana statute, however, also explicitly prohibits registered users from “undertaking any task under the influence of medical cannabis that would constitute negligence or professional malpractice.”
The statute’s anti-discrimination clause is particularly important for employers because it appears to change the rules for terminating employees after a positive drug test. It says:
Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or
(2) a 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 the hours of employment.
On its face, this clause avoids a direct conflict with federal statutes requiring contractors and grant recipients to maintain a drug-free workplace by acknowledging the supremacy of federal law. It also exempts employers who must abide by federal regulations to maintain licenses, such as truck drivers subject to the U.S. Department of Transportation’s Drug and Alcohol Testing Regulation. Outside of those federal conflict exceptions, however, employers cannot discriminate against an employee for a positive drug test for marijuana if the employee is a registered patient, unless the employee used, possessed, or was impaired by marijuana at the place of employment or during work hours.
To illustrate how the non-discrimination clause may complicate life for employers, consider the following example. Steve Stoner and Joe Sixpack are plumbers working for Munchies Mechanical, which has a written drug and alcohol testing policy. Both of them have a prior positive drug test on their records, but they successfully completed drug counseling. They were installing new pipes in a privately owned building on a non-governmental contract. During the installation, they got careless with their torches and started a fire. They both were injured, fortunately with only minor burns, but there was damage to the building. Munchies Mechanical, therefore, asked them to take a drug test under the reasonable suspicion provision of its drug testing policy. The initial tests were positive for marijuana for both plumbers, so the testing lab conducted confirmation tests, which were also positive. Munchies Mechanical notified the plumbers of the positive test results, and gave them the opportunity to explain the test results. Steve claimed, while eating an entire bag of Cheetos, to have no idea how he could have tested positive. In contrast, Joe explained that he has cancer, and that he takes medical marijuana immediately after his chemotherapy appointments to control nausea, so he is still able to work despite his illness. He then produced his medical marijuana registry card. Can Munchies Mechanical fire Joe or Steve based on their positive drug tests without violating Minnesota law?
For Steve, the analysis is pretty easy. He tested positive for a controlled substances, he provided no explanation, he had a prior violation, and Munchies Mechanical’s employee handbook is clear that “Two strikes and you’re out.” Without any other operative facts, Munchies Mechanical is probably able to terminate Steve.
Joe’s situation, however, is more complex. Joe tested positive for a controlled substance, but he explained that the positive test result was because he takes medical marijuana. That disclosure puts the anti-discrimination clause in the medical marijuana statute into play. That clause says “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon . . . a 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 the hours of employment.” The intent of the statute appears to be that employers cannot terminate employees solely due to a positive drug test for marijuana if the employee is a registered medical marijuana user. Munchies Mechanical, therefore, may not be able to terminate Joe, despite its drug policy. That result may be different if Munchies Mechanical had evidence that Joe was impaired by marijuana during work hours because the statute has a fairly clear exception for use, possession, or impairment by marijuana during work hours or at the place of employment. As always, the safest course for employers facing a potential termination situation is to thoroughly document the facts and circumstances, to act reasonably, and to seek legal counsel before terminating an employee.
In addition to the anti-discrimination clause in Minnesota’s medical marijuana statute, Minnesota’s lawful activities statute may cause legal issues for employers. That statute says:
An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours. For purposes of this section, “lawful consumable products” means products whose use or enjoyment is lawful and which are consumed during use or enjoyment and includes food, alcoholic or nonalcoholic beverages and tobacco.
Employees can sue employers for lost wages and benefits for violation of this statute, and the court is required to award reasonable attorneys’ fees to whichever party wins. The problem for employers is that Minnesota’s courts have not yet ruled whether marijuana can be a “lawful consumable product.”
Consider the Munchies Mechanical example above. Now suppose that Steve Stoner explains his positive drug test for marijuana by saying that a couple of weeks ago, while on vacation in Oregon, which permits recreational use of marijuana, he attended a Cheech & Chong film retrospective and smoked a joint. His argument would be that the lawful activities statute shields him from termination because: (1) he consumed a product that was legal where he consumed it; (2) he consumed it during nonworking hours; (3) he consumed it off his employer’s premises; and (4) his consumption was far enough in the past that it could not have impaired him during his working hours. The counter-argument, of course, is that although recreational marijuana may be legal in Oregon, it is not legal under Minnesota or federal law, so his marijuana use is not covered by the lawful activities statute.
A similar fact pattern was recently litigated in Colorado. Dan Coates was a customer service representative for Dish Network. He is also a quadriplegic and a registered patient in Colorado’s medical marijuana program. During a random drug test, he tested positive for marijuana, so Dish Networks fired him. There were no allegations or evidence that he used, possessed or was impaired by marijuana while at work. Mr. Coates argued that he was protected from termination under Colorado’s lawful activities statute, which is remarkably similar to Minnesota’s. The trial court, Colorado Court of Appeals, and the Colorado Supreme Court all ruled that although Mr. Coates’ use of marijuana was legal under Colorado law, it was not legal under federal law. Therefore, his use of marijuana was not a “lawful activity” and he was not shielded from termination under the lawful activities statute.
Minnesota’s courts have not yet ruled on this issue. Because the Coates case is from Colorado, it is not binding on Minnesota’s courts. Minnesota’s courts could choose to rule differently than Colorado’s, particularly since Minnesota’s medical marijuana statute includes some employment protection. But given the similarity in the states’ lawful activities statutes, the Colorado case could certainly be considered persuasive authority. The bottom line for employers is that until Minnesota’s courts rule on the issue, employers face potential liability under the lawful activities statute if they terminate a registered medical marijuana user.
Employers have a legitimate right to ensure that their employees are not impaired by alcohol or drugs at work because such impairment is a safety issue for the employees and everyone around them. But medical marijuana has arrived in Minnesota, complicating an already difficult area of employment law. Employers should carefully review their policies, procedures, and employee handbooks to ensure that they do not violate any statutory employment protection provisions while striving to keep their employees and customers safe.
 See Minn. Stat. § 152.25 subd. 1(b)(1).
 See Shalandra D. Ballard, Clearing the Haze of Marijuana in the Workplace, Minnesota CLE Employment Law Institute, May, 2015.
 See id. Those states are Colorado, Washington, Oregon, and Alaska. Minnesota’s medical marijuana statute distinguishes between medicinal use of marijuana and recreational use. See Minn. Stat. § 152.27 subd. 1(b) (“The establishment of the registry program shall not be construed or interpreted to condone or promote the illicit recreational use of marijuana.”).
 See 21 U.S.C. § 812(c); 21 U.S.C. § 844(a). By definition under federal law, a Schedule I controlled substance is one that “has a high potential for abuse,” “has no currently accepted medical use in treatment in the United States,” and “there is a lack of accepted safety for use of the drug or other substance under medical supervision.” See 21. U.S.C. § 812(b). Interestingly, opium and cocaine are only classified as Schedule II drugs, and methamphetamine is on Schedule III. Schedule II drugs are defined as those that have a “high potential for abuse,” but they “have a currently accepted medical use”. See 21 U.S.C. § 812(c). Schedule III drugs have a lower potential for abuse than Schedule I or II drugs. See id.
 See Minn. Stat. § 152.32 subd. 3(c).
 See Minn. Stat. §§ 152.22-.37.
 See Minn. Stat. § 152.32 subd. 2.
 See Minn. Stat. § 152.32 subd. 1.
 See Minn. Stat. § 152.23(a)(1).
 This is a new statute so it has not been tested in practice and has not been interpreted by Minnesota’s courts.
 Minn. Stat. 152.32 subd. 3(c).
 See 41 U.S.C. §§ 8102-03 (Drug-Free Workplaces Act).
 See 49 C.F.R. § 40.137 (stating that a positive result for marijuana cannot be excused with a legitimate medical explanation).
 See Minn. Stat. § 152.32 subd. 3(c).
 All persons and firms in this hypothetical are fictional. Any resemblance to actual people or entities is coincidental.
 Minnesota tightly controls when and how employers may conduct drug testing. See Minn. Stat. § 181.951 subd. 1(a) (“An employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in this section.”). One of those restrictions is that testing may only be conducted pursuant to a written drug policy. See Minn. Stat. §§ 181.951 subd. 1(b), 181.952, and 181.953 subd. 6. Violation of Minnesota’s drug testing statutes can result in liability for employers, so careful review of drug policies is prudent. See Minn. Stat. § 181.956.
 Minnesota is an employment at will state, which means that employers and employees can each terminate an employment arrangement for any or no reason. That does not mean, however, that employers are immune from lawsuits from terminated employees.
 See Minn. Stat. 152.32 subd. 3(c) (emphasis added).
 This statute has not yet been interpreted by Minnesota’s courts. Unfortunately, the legislature did not make its intent absolutely clear. It did not, for example, explicitly say, “Employers may not take adverse employment action against a registered medical marijuana user based solely upon a positive test result for marijuana.” Someone may argue that the term “discriminate” in the statute is ambiguous. The argument could be that an employer with a “zero tolerance” policy does not discriminate against medical marijuana users when it fires them because it fires everyone who tests positive for marijuana. The employer is not, therefore, discriminating, because it is treating everyone exactly the same.
 Minn. Stat. § 181.938 subd. 2.
 See Minn. Stat. § 181.938 subd. 4.
 See Coats v. Dish Network, — P.3d — (Colo. 2015); 2015 WL 3744265 (June 15, 2015) at *1.
 See id.
 See id.
 See id.
 See id. Compare Minn. Stat. § 181.938 subd. 2 (“An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.”) with Colo. Rev. Stat. § 24-34-402.5(1) (“It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”).
 See Coats v. Dish Network, — P.3d — (Colo. 2015); 2015 WL 3744265 (June 15, 2015) at *4 (affirming Colorado Court of Appeals decision at 303 P.3d 147, 151-52 (2013).
Congratulations to the ten attorneys from Fabyanske, Westra, Hart & Thomson, P.A. who have been named 2015 “Minnesota Super Lawyers”. The polling, researching, and selecting of “Super Lawyers” is designed to identify Minnesota lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of Minnesota attorneys receive this honor. FWHT’s 2015 “Minnesota Super Lawyers” include Scott Anderson, Julie Doherty, Gary Eidson, Marv Fabyanske, Kyle Hart, Jesse Orman, Greg Spalj, Dean Thomson, Tom Vollbrecht and Mark Westra. Once again, Kyle Hart and Dean Thomson were selected as Top 100 “Super Lawyers”. Dean Thomson was selected a Top 10 “Super Lawyers”.
Congratulations to the Fabyanske, Westra, Hart & Thomson, P.A. attorneys who have been named 2015 Minnesota “Rising Stars”. They are Jeff Jones and Jeff Wieland. “Rising Stars” are nominated by their peers and must be 40 years old or under, or have been practicing for 10 years or less. No more than 2.5 percent of the lawyers in the state are named to the list.
Mark Becker will be speaking on “Construction Law Update: Front-Burner Issues” on September 29, 2015 at the 8th Annual MNCPA Construction Conference.
Mark Becker will also be speaking on “Construction Contract Change Orders” on October 21, 2015 through the National Business Institute. For more information on either speaking engagement, please contact Mark at 612.359.7620 or firstname.lastname@example.org.
Tom Vollbrecht was appointed as a Vice Chair of the ABA Fidelity and Surety Law Committee.
Mark Becker has been elected as Treasurer of the Minnesota State Bar Association Construction Law Section Governing Council for 2015-2016. Kristine Kroenke has also been elected as Council Member to the MSBA Construction Law Section Governing Council. Jesse Orman and Jeff Weiland are also currently Council Members to the Governing Council.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2015 FWH&T.