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Minnesota Employers Navigate Legalized THC Edibles

Minnesota employers who conduct pre-employment drug testing or drug testing of current employees are familiar with the protections for employees who are enrolled in the Department of Health Patient Registry Program for medical marijuana.  An employer cannot discriminate against a person enrolled on the Patient Registry in hiring, termination or any term or condition of employment based upon a positive drug test for cannabis components or metabolites unless the employee used, possessed or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.  This provision has been a challenge to apply because marijuana stays in the system for so long, and it can be difficult to ascertain if a person who fails a marijuana drug test is actually impaired at the time of the test. Now, Minnesota employers have another challenge in their effort to maintain a drug-free workplace with the Minnesota legislature’s legalization of certain forms of marijuana for recreational use.  Effective July 1, 2022, Minnesotans can lawfully purchase and consume edible and drinkable products containing hemp derived THC.  THC is an element of cannabis which is considered a hallucinogenic substance. The Minnesota statute excludes from its list of controlled substances hemp products that contain no more than 0.3 percent of any form of THC.  The Minnesota law goes further and allows Minnesotans to purchase edible and drinkable products that contain no more than 5 milligrams of THC per serving and no more than 50 milligrams per package. This Minnesota law does not affect drug testing conducted pursuant to federal law, such as for truck drivers covered by the U.S. Department of Transportation drug and alcohol testing regulations. The THC statute does not discuss protections for employees or applicants who test positive for marijuana because they have consumed a THC product.  An applicant or an employee can now explain a positive result for marijuana as arising from the lawful use of THC products, which creates a conundrum for employers.  Can they require that the employee undergo the procedures described in the Minnesota Drug and Alcohol Testing in the Workplace Act because of testing positive for marijuana?  Or should they disregard the positive test result?  An employer must consider whether the individual who has tested positive for marijuana because of consuming THC holds a position where being under the influence of marijuana could be a safety concern.  Marijuana can remain in a user’s body for up to four weeks after the marijuana is consumed, so the individual may not actually be working under the influence of a hallucinogenic drug because it could have been consumed several weeks before the drug test. In addition, Minnesota’s Lawful Consumable Products Act poses another problem.  This statute protects the consumption of a lawful consumable product during an employee’s non-work time.  The statute defines a “lawful consumable product” as a product whose use or enjoyment is lawful, and specifically includes food, alcoholic or non-alcoholic beverages, and tobacco.  It is unclear if THC edibles fall under this statute, and if they do, it would protect an employee who receives a positive marijuana test because of the consumption of THC. In 2015, the Colorado Supreme Court held that employers could enforce their zero tolerance policies against employees who are allowed to use medical cannabis under state law, even if the employee uses the marijuana during nonwork hours.  The Colorado Supreme Court stated that to be protected under the lawful consumable product statute in that state, the use must be “lawful” under both state and federal law.  Therefore, since marijuana is illegal under federal law, a Colorado employee testing positive for medical marijuana can be disciplined, including termination, for failing a drug test.  The Minnesota THC statute makes no reference to the lawful consumable products statute so it is unknown how that statute would be interpreted by a court with respect to THC edibles. What Should Minnesota Employers Do in Light of These Ambiguities? Many employers are considering waiving a positive marijuana test, or not testing for marijuana at all, because so many applicants and employees are failing drug tests.  These employers are trying to assess the risk in allowing an employee who tests positive for marijuana to be hired or to retain their employment.  Employers can still prohibit employees from coming to work impaired by marijuana, and for using marijuana in the workplace, but impairment can be difficult to identify.  Whether employers should take action against an employee who tests positive for marijuana because the employee has consumed a THC edible, depends on the duties and responsibilities of the employee.  Additionally, supervisors and managers will have to be trained to recognize whether an employee is coming to work under the influence of marijuana.  They must be able to recognize impairment since a positive marijuana test does not necessarily mean that an individual is impaired at the time the test was taken. Employers will also have to evaluate the risk and safety of allowing an applicant or employee to continue to work when they have failed a marijuana test.  Some employers may decide to test only those employees in safety sensitive positions. Hopefully, the testing laboratories will refine their testing procedures so that it is easier to determine whether a positive drug test derives from lawful THC.  For now, employers can take adverse action against an employee who fails a drug test because of consuming lawful THC (subject to the requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act, such as the requirement that before disciplining an employee, the employee must be offered an opportunity to be assessed by a chemical dependency counselor and comply with the counselor’s recommendations).  It may take the courts some time to determine whether THC edibles are a lawful consumable product protected by the Lawful Consumable Product Act. Employers should consult with their legal counsel to discuss whether to cease testing for marijuana.  At present, there is uncertainty as to the impact of the new THC statute on an employer’s right to maintain a zero-tolerance policy for drugs, including marijuana.  I recommend employers keep a close eye on this issue as new information develops. Phyllis Karasov is an attorney who advises businesses on labor and employment matters. Her clients come from a variety of sectors, including construction, manufacturing, higher education, K-12 private education, nonprofit and healthcare.

September 1, 2022

Accommodations

Undue Hardship for Religious and Medical Exemptions From a Mandatory COVID-19 Vaccination Policy

Many employers are adopting a mandatory COVID-19 vaccine policy, or they are required by owners, contractors, developers, or state, local or federal government to adopt such a policy for employees working on particular projects.  The recognized exceptions to mandatory vaccination policies are for employees who have a medical condition, or employees who have a religious objection to the COVID-19 vaccination. If an employee is entitled to an exemption from a mandatory vaccine policy because of a medical condition, the employer must determine if a reasonable accommodation exists so that the employee can continue to work without the vaccination.  Similarly, when an employee is entitled to an exemption because of a sincerely held religious belief, the employer should determine if a reasonable accommodation exists. Title VII prohibits religious discrimination and requires an employer to provide a reasonable accommodation for an employee’s religious beliefs.  A similar obligation to provide a reasonable accommodation exists under the ADA for a qualified employee’s known physical or mental limitations.  “Undue hardship” is the limitation on the obligation to provide a reasonable accommodation under both Title VII and the ADA.  However, the criteria for “undue hardship” are very different between Title VII and the ADA. Under the ADA, undue hardship means an action that requires significant difficulty or expense.  Accommodations may cause an undue hardship if the accommodation is unduly expensive, substantial, disruptive, or will fundamentally alter the nature or operation of the business.  The factors that are to be considered in determining whether an undue hardship exists include (1) nature of the accommodation; (2) the cost of the accommodation; (3) the employer’s financial resources; (4) the size of the business; and (5) the operation of the business. Another important aspect of the analysis under the ADA is whether the presence of an unvaccinated employee in the workplace poses a direct threat to the employee or others.  A direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  Assessment of whether there is a direct threat is very fact-based and dependent upon individual circumstances.  Among the factors to be considered is the type of work environment, whether the employee works with others, the ability to social distance, the extent of contact an employee has with co-workers, and whether the employee works indoors or outdoors. If an unvaccinated employee poses a direct threat to themselves or others, the employer must ascertain if a reasonable accommodation is possible.  If the employee does not pose a direct threat, the employer must allow the unvaccinated employee to perform their work at the employer’s location. In contrast, there is a much lower standard for undue hardship under Title VII when dealing with a religious belief.  Under Title VII, an undue hardship requires only “more than de minimus cost.”  Thus, the burden on an employer to accommodate a religious objection to a COVID-19 vaccination is lower than the burden to accommodate a disability-related objection to a COVID-19 vaccination. Despite the difference in the criteria for determining undue hardship in the case of religious objection vs. medical exemption, the accommodations for an unvaccinated employee are most likely the same.  Reasonable accommodations for both exceptions could include social distancing, working remotely, masking, weekly COVID testing, moving the employee to an isolated work location, reassignment, or changing work hours.  The difference is that if a reasonable accommodation for a sincerely held religious belief results in more than a minimal cost, the employer does not have to provide that accommodation.  On the other hand, if the accommodation is requested because of an employee’s medical condition, the burden the employer must accept is much higher under the ADA. An employer should engage in an interactive dialogue with the employee requesting an exemption, whether the request is based on a medical condition or a religious objection.  Regardless of the basis, the employer must consider which accommodations may be possible and discuss the options with the employee. Conclusion Employees have the right to request an exemption from a mandatory COVID-19 vaccination policy because of a disability or because of a sincerely held religious belief.  When a request for an exemption is made, employers must assess whether a reasonable accommodation exists such that an unvaccinated employee can continue to work, or whether such accommodations pose an undue hardship to the employer.  While the standards for undue hardship are different when analyzing a religious objection vs an exemption for a medical condition, the accommodations may not be that different.  Regardless of the basis for the exemption request, an employer should document the request, the reason(s) for the request, any documentation submitted by the employee, and the accommodations which were considered.  An accommodation can be reasonable for one employee, but not reasonable for another employee because of the nature of their jobs and the location of their work areas. For more information regarding reasonable accommodations for religious exemptions please see: An Employer’s Guide to Addressing Requests for Religious Exemption From a Mandatory COVID-19 Vaccine Policy. Please reach out to Phyllis is you have any questions regarding your labor and employment issues.  Phyllis can be reached at pkarasov@larkinhoffman.com or 952-896-1569.

November 1, 2021

Accommodations

An Employer’s Guide to Addressing Requests for Religious Exemption From a Mandatory COVID-19 Vaccine Policy

Employers mandating that employees be vaccinated against COVID-19 should know how to respond to an employee’s request for a religious exemption from the vaccination policy.  In this post, I discuss the process an employer can use to distinguish an employee’s personal opposition to a vaccination from a sincerely held religious belief that qualifies as a religious exemption and what options an employer has to protect its business. Sincerely Held Religious Belief When an employee requests a religious accommodation, the first question to ask is whether the employee has a sincerely held religious belief, practice or observance which prevents them from being vaccinated.  Title VII of the Civil Rights Act, states that sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  This vague statement means that employees who have a personal or philosophical disagreement with a vaccine are not entitled to a religious exemption. However, it is difficult to distinguish a personal or philosophical belief from a moral or ethical belief held with the strength of traditional religious views.  The religious belief does not have to be based on traditional religions and could derive from a religion or ethical or moral code with which the employer is unfamiliar. The U.S. Equal Employment Opportunity Commission (EEOC) has stated that employers should generally assume that an employee’s stated religious belief is sincerely held unless the employer has a good faith and objective basis for questioning the religious nature or the sincerity of the stated belief.  There is little guidance as to the definition of a “good faith and objective basis” for questioning a claim of religious belief. Documentation of a Request for Religious Exemption We recommend that employers require employees who claim they have a sincerely held religious belief and request an accommodation, to submit the request in writing explaining the basis for the sincerely held religious belief.  The employer is entitled to request information relating to the accommodation request and require a certification from the employee that the statements, documents and information provided to the employer are true and correct. An employer who has a good faith and objective basis for questioning the religious nature or the sincerity of the stated belief, can request documentation of the religious belief.  Examples of good faith and objective bases for questioning the validity of a claim for religious exemption include: when an employee has never requested an accommodation in the past for religious reasons; an employee has made statements to others that they distrust the vaccine; an employee quotes an online news article challenging the efficacy of the COVID-19 vaccine. These statements reflect personal opposition to the vaccine and are inconsistent with the claim that the vaccination is contrary to the employee’s religious belief.  The types of documents that an employer can request could include: Explanations from the employee about the nature and principles of the employee’s asserted beliefs and information about when, where and how they follow the practice or belief. Religious materials which describe the religious belief or practice. Written statements from others, such as religious leaders, with whom the employee has discussed his or her beliefs or who have observed the employee’s past behavior that evidences this religious belief. Each employee’s request for an exemption should be assessed on a case-by-case basis.  The individual reviewing the request for the religious exemption is entitled to consider whether the employee has engaged in any previous behavior or conduct that either deviates from or is consistent with the principles of his or her beliefs.  For example, perhaps the employee has made previous requests for accommodations for their religious beliefs.  The person reviewing the request is entitled to consider all previous statements made by that employee which may help to ascertain whether the employee’s objection is truly based on a sincerely based religious belief or, rather, is a personal or philosophical objection to the vaccine.  It is advisable for the same person to review and decide all requests for religious accommodation to ensure that these determinations are consistent and objective. An Interactive Process Should be Used to Determine if an Accommodation is Feasible If the religious exemption is granted, the employer should engage in an interactive process with the employee to determine whether the exemption from the COVID-19 vaccine requirement can be accommodated without creating a safety risk for other employees or the public.  Examples of possible accommodations include: Weekly COVID-19 testing; The employee is required to wear a mask at all times; Requiring the employee to maintain social distancing from co-workers and/or others; Move the employee to a more isolated work area where they will be more than six feet apart from co-workers; Reassign the employee to another available position which will allow the unvaccinated employee to work in a more isolated manner. Employers should discuss the possibility of these options with the employee if they are feasible; an employer is not required to give the employee the specific accommodation the employee has requested. Whether any accommodations are feasible depends upon the unvaccinated employee’s job duties; the physical set-up of the work place; whether the employee interfaces with the public; and other characteristics unique to the employer and to the unvaccinated employee’s job responsibilities.  There are situations where accommodations are not possible and, in that case, employers have the option to exclude employees who refuse to be vaccinated from the workplace.  In this situation, the employee could be terminated or placed on an unpaid leave of absence until the pandemic subsides.  Employers should not, however, exclude an employee from the workplace without consulting legal counsel. Accommodations Creating an Undue Hardship Employers can determine that the accommodation requested by an employee for religious reasons is an undue hardship for the employer.  The existence of “undue hardship” in the context of religious accommodation uses a lower standard than is used to determine “undue hardship” under the Americans With Disabilities Act (ADA).  An undue hardship in connection with a religious accommodation is one that would require more than a de minimis (minor) cost or burden to the organization or the business operations.  In contrast, the standard for undue hardship under the ADA is “significant difficulty or expense.”  Certainly, a safety risk or impact on the business operations or objectives can be considered in determining whether there is an undue hardship. Conclusion Religious objections to a mandatory vaccination policy can be very difficult to evaluate.  Employers should be alert to statements which employees make to other employees or to management concerning their personal views of the vaccination. These statements may evidence either a sincerely held religious belief, for which an accommodation may be appropriate, or a personal or philosophical objection to the vaccine, for which no accommodation is required. If you have questions about your vaccine policies or other workplace policies during this challenging time, I am available to help.  Please feel free to phone or email pkarasov@larkinhoffman.com with any questions you may have.

September 9, 2021

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