The New Medical Cannabis Act and Drug Testing in Minnesota

On May 29, 2014 Governor Mark Dayton signed the new Medical Cannabis Act. The Act amends Minnesota criminal statutes to protect patients who enroll in a state registry program to use or possess marijuana. Patients who are diagnosed with a qualifying medical condition by a health care practitioner and have met other statutory requirements must register with the Minnesota Department of Health in order to possess or use medical cannabis. The Commissioner of Health will assign an identification number to each patient enrolled in the registry program.
 
Medical cannabis means any species of the cannabis plant, or any mixture or preparation of them, including whole plant extracts and resins, and is delivered in the form of:  

1. Liquid, including but not limited to oil;
2. Pill;
3. Vaporized delivery method with use of liquid or oil but which does not require the use of dried leaves or plant form; or
4. Any other method excluding smoking, approved by the Commissioner of Health. Smoking marijuana is not protected under the Act.

The Department of Health will issue a registry verification providing that a patient is enrolled in the registry program and including the patient’s name, registry number and qualifying medical condition.  A qualifying medical condition means a diagnosis of any of the following conditions:

1. Cancer, if the underlying condition or treatment produces one or more of the following:
    (i)        Severe or chronic pain;
    (ii)       Nausea or severe vomiting; or
    (iii)      Cachexia or severe wasting;
2. Glaucoma;
3. Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome;
4. Tourette’s Syndrome;
5. Amyotrophic Lateral Sclerosis;
6. Seizures, including those characteristic of Epilepsy;
7. Severe and persistent muscle spasms, including those characteristic of Multiple Sclerosis;
8. Crohn’s Disease;
9. Terminal illness with a probable life expectancy of under one year, if the illness or its treatment produces one or more of the following:
    (i)        Severe or chronic pain;
    (ii)       Nausea or severe vomiting; or
    (iii)      Cachexia or severe wasting;
10. Any other medical condition or its treatment approved by the Commissioner of Health.

Employment Protections for a Patient Enrolled in the Registry Program
 
The Act provides that an employer may not discriminate against a person in hiring, termination, any term or condition of employment, or otherwise penalize a person, if the discrimination is based on either of the following:

1. The person’s status as a patient enrolled in the registry program; 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.

The only exception to this prohibition is where a failure to discriminate against a person would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.
 
An employee who is required to undergo employer drug testing may present verification of enrollment in the patient registry as an explanation of a positive drug test.
 
Although this law became effective on May 30, 2014, many of its provisions will not take effect until mid 2015.  The Minnesota Department of Health must promulgate rules regarding the registration of manufacturers for the production of medical cannabis and other lawful sources for medical marijuana, as well as to establish the state registry program for patients authorized to use medical marijuana.
 
The Act poses a number of issues for employers.

1. For those employers where failing a drug test would not violate federal law or regulations or cause the employer to lose a monetary or licensing-related benefits under federal law or regulations, the employer cannot refuse to hire an applicant who fails a drug test for the use of cannabis who presents verification of enrollment in the patient registry.  Also, the employer cannot take adverse action against any employee who fails an employer drug test for the use of cannabis who presents verification in enrollment in the patient registry.  The only circumstance under which an employer can discipline an employee or take other adverse action because of failing a drug test as a result of medical cannabis is if the employer can prove that the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.  Thus, merely failing a drug test because of medical marijuana will not be a sufficient basis on which to take adverse action against an employee.  Proving the use, possession or impairment on the employer’s premises may be a difficult burden.
2. Presently most drug testing companies are unable to distinguish the presence of marijuana as a result of smoking the marijuana versus ingesting it in the form of liquid or vaporized delivery.  Drug testing companies will have to develop methodologies for making this distinction.
3. Employers which use a fast drug test such as a saliva test will be unable to rely on a positive drug test unless the quick test distinguishes between permitted use of medical cannabis versus the other ways of ingesting marijuana not permitted under the Act.
4. When an employee informs the employer that he or she has been registered under the state registry program the employer should request to see the registry verification.  Once the employer has the knowledge of enrollment in the registry program, the employer may have to consider whether there is an obligation to provide a reasonable accommodation to such employees under the Minnesota Human Rights Act.  Since the use or possession of marijuana is illegal under federal law, the Americans with Disabilities Act would not require reasonable accommodation for the use of medical marijuana.

There are many issues yet to be addressed as the Department of Health develops the patient registry program and the rules related to this Act.  However, as employers prepare for the implementation of this new Act, there are several steps an employer can take:
 
Review of Drug Testing Policy
Employers should begin to think about revising their drug and alcohol testing policies to accommodate the use of medical cannabis and to clearly state that the employer has the right to take appropriate action based upon a positive marijuana test result as permitted by law.  The drug and alcohol testing policies do not have to be changed now; it is still permissible to take adverse action against applicants and employees who fail a drug test.
 
Discussions with Drug Testing Companies
Employers should begin to have conversations with the drug testing entities who perform drug and alcohol testing for the employer concerning the consequences of the Act as well as how the drug testing company will make distinctions between a positive result demonstrating permitted use of medical marijuana versus unpermitted use of marijuana.